Jurisdiction - loss caused by contravention of Sale of Land Act 1962 s 32 - Australian Consumer Law and Fair Trading Act 2012 s 217, Sale of Land Act 1962 s 48A.

Wagner v Usatov (Civil Claims) [2014] VCAT 1198

1. The respondents shall pay the applicants $5,048.39.
2. The respondents shall pay the applicants $132.30 as reimbursement of the filing fee which the applicants paid.

1. The applicants Robert Claus Wagner and Michelle Melissa Brennan purchased a house property from the respondents Viacheslav Usatov and Galina Usatov in March 2009. They completed the purchase two months later by paying at settlement the balance of the purchase price. In this proceeding they allege that the Usatovs breached an obligation to disclose to them a planning requirement which affected the property. As a result of action which they and the Usatovs took in 2012 the planning requirement no longer affects the property. They incurred liability for $5,048.39 in legal costs before achieving that result. They claim that sum from the Usatovs in this proceeding.
2. The relevant planning requirement was a condition in a planning permit which Yarra Ranges Shire Council had issued to the Usatovs in 2008. The permit allowed the use and development of a dwelling on a parcel of land which included the land later sold to Mr Wagner and Ms Brennan, and also allowed the removal of vegetation on that parcel of land. A condition upon which the permit was granted was that the Usatovs were required to enter into an agreement with Yarra Ranges Shire Council. The agreement was to be made under s 173 of the Planning and Environment Act 1987: a 'Section 173 Agreement'. It would require the Usatovs to fence off and revegetate some of the land in the parcel and to maintain the revegetation. Its registration at the Office of Titles would bind their successors in title to fulfil that requirement.
3. Eventually the Usatovs did enter into the Section 173 Agreement. They did so after they had entered into the contract of sale to Mr Wagner and Ms Brennan but before settlement.
4. Before Mr Wagner and Ms Brennan signed the contract the Usatovs gave them a vendors' statement in intended compliance with s 32 of the Sale of Land Act 1962: the 'Section 32 Statement'. It made no reference to the planning permit or to the condition that the Usatovs enter into a Section 173 Agreement.
5. The principal issue in the proceeding is whether the Usatovs contravened s 32 of the Sale of Land Act 1962 by failing to disclose in the Section 32 Statement something that the section had obliged them to disclose. Mr Wagner and Ms Brennan cannot succeed in the proceeding unless that issue is decided in their favour. If it is, consumer protection legislation that confers jurisdiction upon the Tribunal[1] may provide them with a remedy.

The Contract and the Section 32 Statement

1. The land which Mr Wagner and Ms Brennan purchased from the Usatovs is situated at 141 Emerald Monbulk Road, Emerald. It is Lot 2 on Plan of Subdivision 344805L ('Lot 2') described in Certificate of Title volume 10240 folio 785. The contract of sale of Lot 2 was dated 10 March 2009.
2. The Usatovs own neighbouring land at 100 Thomas Road, North Emerald. It is Lot 100 on Plan of Subdivision 015876 ('Lot 100') described in Certificate of Title volume 08169 folio 697. The parcel of land, to which the planning permit issued in 2008 had applied, consisted of Lot 100 and Lot 2.
3. So far as it is relevant to this proceeding, s 32 of the Sale of Land Act 1962 provided on 10 March 2009, and still provides, as follows:
   • (1) A vendor under a contract for the sale of land shall -
     • (a) give to the purchase before he signs the contract a statement signed by the vendor; and
     • (b) include in the contract a statement -

containing the matters specified in subsection (2).

(2) The statements required by subsection (1) shall contain the following matters:

(b) A description of any easement, covenant or other similar restriction affecting the land (whether registered or unregistered) and particulars of any existing failure to comply with the terms of that easement, covenant or restriction;

(c) In the case of land to which a planning instrument applies a statement containing -

• (i) the name of the planning instrument;
• (ii) the name of the responsible authority;
• (iii) the zoning of the land under that instrument or, in the case where the land is reserved under that instrument, the purpose for which it is reserved;
• (iv) where a planning instrument prohibits the construction of a dwelling house on land outside the metropolitan area, notice of such prohibition;

The use to which you propose to put the property may be prohibited by planning or building controls applying to the locality or may require the consent or permit of the municipal council or other responsible authority. It is in your interest to undertake a proper investigation of permitted land use before you commit yourself to buy.'

(e) particulars of any notice, order, declaration, report or recommendation of a public authority or government department or approved proposal affecting the land, including any notice of intention to acquire served under section 6 of the Land Acquisition and Compensation Act 1986, being a notice, order, declaration, report, recommendation or approved proposal of which the vendor might reasonably be expected to have knowledge;

1. The Section 32 Statement which the Usatovs gave was dated 27 February 2009. It commenced with the 'Important notice to purchasers' required by s 32(2)(ca). It then set out nine numbered paragraphs. The first two were:
   1. RESTRICTIONS - Information concerning any easement, covenant or other similar restriction affecting the Property (registered or unregistered) -
      • 1.1 Description -

As set out in the attached copy of Title documents.

1.2 Particulars of any existing failure to comply with their terms are as follows - None to the Vendors knowledge.

1. PLANNING AND ROAD ACCESS - Information concerning any planning instrument -

The property is in an area which may be classified as a landslip area. The Purchaser should check with the Shire of Yarra Ranges as to the landslip classification of the property and as to any restrictions which may be imposed on development.

Neither the attached copy of the certificate of title nor the attached planning certificate made any reference to the planning permit or to the condition relating to a Section 173 Agreement.

1. Paragraph 7of the Section 32 Statement was:
   1. NOTICES - Particulars of any notice, order, declaration, report or recommendation of a public authority or government department or approved proposal affecting the property of which the Vendor might be reasonably expected to have knowledge, are as follows - Nil. The Vendor has no means of knowing of all decisions of Public Authorities and Government Departments affecting the property unless communicated to the Vendor.
2. Nothing else in the Section 32 Statement was capable of being a reference to the planning permit or to the condition in it relating to a Section 173 Agreement.
3. Settlement under the contract of sale of Lot 2 occurred on 14 May 2009. Mr Wagner and Ms Brennan paid the balance of purchase money and took a transfer of Lot 2.
4. On 22 July 2009 the Usatovs' solicitors wrote to the conveyancer for Mr Wagner and Ms Brennan. The letter stated: 'Our clients inadvertently omitted to bring to the attention of your clients a Section 173 Agreement which affects the land'. The solicitors enclosed a copy of the Section 173 Agreement.

The Planning Permit and the Section 173 Agreement

1. Before August 2008 the Usatovs had applied to Yarra Ranges Shire Council for a planning permit for the construction of a dwelling on Lot 100. The application was refused. The Usatovs applied to VCAT for a review of the responsible authority's decision. A VCAT Member heard the application on 12 August 2008 and, by a determination dated 20 October 2008,[2] allowed the application for review and directed that a permit issue, subject to 15 specified conditions. Condition 14 was:
   1. Prior to commencement of the use/development, an agreement under Section 173 of the Planning & Environment Act 1987 must be entered into between the owner of the site (being Lot 100 on PS 015876, Volume 08169 Folio 697 and Lot 2 on PS344805L, Volume 10240 Folio 785) and the Responsible Authority requiring:

(a) That agreement is to be binding on the land owner's successors in title;

(b) Details of works outlined in the Net Gain Offset Management Plan to be undertaken to protect vegetation; and

(c) That conservation management of flora and fauna on the land will be undertaken for a minimum of 10 years.

This agreement is to be prepared by the Responsible Authority at the owner's expense and will be recorded on the folio of the register relating to the site. The owners agree to pay on demand all costs and expenses of and incidental to the preparation, execution and recording of this agreement.

1. Part 9 Division 2 of the Planning and Environment Act 1987 ('PE Act'), which includes s 173, provides for the making of agreements of the kind described in Condition 14. Under that Division:
   • a responsible authority may enter into an agreement with an owner of land in the area covered by a planning scheme for which it is the responsible authority;[3]
   • the agreement must be under seal and must bind the owner to the covenants specified in the agreement;[4]
   • the agreement may provide for (amongst other things) the conditions subject to which the land may be used or developed for specified purposes;[5]
   • the responsible authority must apply to the Registrar of Titles to register the agreement,[6] and the Registrar of Titles is then obliged to record the agreement in the Register of Titles;[7]
   • after the making of the recording in the Register, the burden of any covenant in the agreement runs with the land affected, and the responsible authority may enforce the covenant against any person deriving title from the covenantor as if it were a restrictive covenant;[8] and
   • if the land or any part of the land subject to the agreement is transferred, the transferee becomes a party to the agreement.[9]
2. For reasons that I set out below,[10] I find that on 31 October 2008 Yarra Ranges Shire Council, pursuant to the VCAT determination on 20 October 2008, issued to the Usatovs a planning permit which was subject to conditions which included condition 14.
3. The Section 173 Agreement, the existence of which the Usatovs had disclosed in their solicitors' letter, was dated 14 April 2009. That was a date after the date on which the Usatovs had given the Section 32 Statement and after the date on which Mr Wagner and Ms Brennan had signed the contract for their purchase of Lot 2, but before settlement of the contract.
4. The parties to the Section 173 Agreement were Yarra Ranges Shire Council, described as 'Council', and the Usatovs, described as 'Owners'. It was expressed to have been executed under seal, that is to say, as a deed executed by the Council under its common seal and signed, sealed and delivered by the Usatovs. It was expressed to come into force on the date that it was made: 14 April 2009.
5. Clause 1 of the Section 173 Agreement was a definition clause. Clause 1.5 defined 'Land' as meaning Lot 2 and Lot 100. Clauses 1.7 and 1.8 contained definitions as follows:

1.7 "Net Gain Offset Management Plan" means the plan titled "Native Vegetation Framework Assessment & Report, Lot 100 Thomas Road, North Emerald" produced by Treed Environs a business name of Terrastylis Pty Ltd, Revision 2 February 2009 and endorsed by the Council on 5 March 2009.

1.8 "Permit" means planning permit YR-2006/573 issued on 31 October 2008 pursuant to the order of Victorian Civil and Administrative Tribunal dated 20 October 2008 authorising the use and development of one dwelling and the associated removal of the Twelve Trees on Lot 100.

A copy of the Net Gain Offset Management Plan was attached to the Section 173 Agreement.

1. Recitals A, B and C of the Section 173 Agreement stated:

1. The Council is the responsible authority under the Act for the Scheme. 2. The Owner is registered as proprietor of the Land.

1. Condition 14 of the Permit provides as follows:

"Prior to the commencement of the use/development, an agreement under Section 173 of the Planning & Environment Act 1987 must be entered into between the owner of the site (being Lot 100 on PS015876, Volume 8169 Folio 697 and Lot 2 on PS344805L, Volume 10240 Folio 785) and the Responsible Authority requiring:

(a) That agreement is to be binding on the land owner's successors in title;

(b) Details of works outlined in the Net Gain Offset Management Plan to be undertaken to protect vegetation; and

(c) That conservation management of flora and fauna on the land will be undertaken for a minimum of 10 years.

This agreement is to be prepared by the Responsible Authority at the owner's expense and will be recorded on the folio of the register relating to the site. The owners agree to pay on demand all costs and expenses of and incidental to the preparation, execution and recording of this agreement."

1. Clause 4 of the Section 173 Agreement was headed 'Owner's Covenants'. So far as they are relevant, clauses 4.1, 4.2, 4.10, 4.11 and 4.12 provided:

4.1.1 complete the works specified in the Net Gain Offset Management Plan on the Land within the timeframes contained in the Net Gain Offset Management Plan or otherwise in accordance with the timeframes determined by the Council; and

4.1.2 manage the Land in accordance with the Net Gain Offset Management Plan,

The Owner covenants and agrees that it must carry out and complete all necessary actions required in the Net Gain Offset Management Plan on the Land for a period of not less than 10 years from the commencement date of this Agreement, to the satisfaction of Council.

The Owner covenants and agrees to allow the Council and its officers, employees, contractors or agents or any of them, to enter the Land (at any reasonable time) to assess compliance with this Agreement.

The Owner's obligations in this Agreement are intended to take effect as covenants which shall be annexed to and run at law and in equity with the Land and every part of it, and bind the Owner and its successors, assignees and transferees, the registered proprietor or proprietors for the time being of the Land and every part of the Land.

4.12.4 until this Agreement is recorded on the folio of the Register which relates to the Land, the Owner will not sell, transfer, dispose of, assign, mortgage or otherwise part with possession of the Land or any part of the Land without first disclosing to any intended purchaser, transferee, assignee or mortgagee the existence and nature of this Agreement.

1. Although the native vegetation protection and management had to be done on Lot 100, it is clear that the Section 173 Agreement affected Lot 2 also and affected the use to which the owners of Lot 2 from time to time could put Lot 2, if for no other reason than that Yarra Ranges Shire Council had a right of access to Lot 2, as provided for in clause 4.10. All the covenants that the Usatovs made in clause 4 would run with Lot 2 and bind Mr Wagner and Ms Brennan once the Section 173 Agreement was registered.

1. Well after the settlement of their sale of Lot 2 had occurred, the Usatovs[11] applied to VCAT for an order permitting the deletion of condition 14 from the planning permit. Mr Wagner and Ms Brennan supported the application. Indeed they made a separate application in which they sought an order that the Section 173 Agreement should no longer apply to Lot 2. Yarra Ranges Shire Council consented to both applications.
2. By a determination dated 7 February 2012[12] a VCAT Senior Member, on the Usatovs' application, ordered that condition 14 was deleted from the planning permit and, on the application of Mr Wagner and Ms Brennan, ordered:

Pursuant to section 184(4) Planning and Environment Act 1987 the land referred to in the section 173 Agreement between Yarra Ranges Shire Council and Viacheslav & Galina Usatov dated 14 April 2009 as Lot 2 PS 344805L known as 141 Emerald - Monbulk Road, Emerald is removed from the application of the section 173 Agreement. Having regard to the amendment to permit P1096/2008 it is considered inappropriate that the agreement should continue to apply to the land and the owner.

1. Mr Wagner and Ms Brennan had engaged solicitors for the purposes of supporting the Usatovs' application for cancellation of condition 14 and of making their own application. The solicitors charged $5,048.39 for their services.

1. The solicitors sent a letter to the Usatovs dated 7 July 2012 asking for payment of $5,000.00 in satisfaction of the expenses of Mr Wagner and Ms Brennan in obtaining the VCAT determination that 'successfully removed the Section 173 Agreement from their title'. By a letter in reply dated 20 August 2012 the Usatovs said, 'We will endeavour to pay this amount within 3 months'. They have not paid it. In this proceeding they have maintained that they are not liable to pay anything.
2. There was no evidence that Mr Wagner and Ms Brennan acted to their detriment as a result of having received the Usatovs' letter. They had already incurred the liability to pay their solicitors' costs. So, although the stance that the Usatovs have taken in this proceeding represents a change of mind, there was no reason in law that prevented them from changing their minds. The fact that they earlier promised to pay $5,000.00 does not mean that they are legally liable to pay it. If they are legally liable to pay any amount there must be another reason for the liability.

1. The proceeding came on for hearing before me on 9 May 2014. The parties were self-represented. A Russian interpreter was present to assist the Usatovs.
2. At the hearing Ms Brennan gave evidence of the facts as I have recounted them. She produced the Section 32 Statement, the contract of sale, the VCAT determinations and the Section 173 Agreement. The Usatovs did not contradict any of that evidence. I accept it. She did not produce any copy of the planning permit and there was no direct evidence that it had been issued or of when it had been issued.
3. There were two respects in which I considered I had been given inadequate information at the hearing. First, although the written application alleged that the Usatovs had had an obligation under s 32 of the Sale of Land Act to disclose the existence of the facts that led up to the Section 173 Agreement, the self-represented applicants were unable to develop the allegation by pointing to the particular part of s 32 which imposed the alleged obligation. To my mind, it was by no means obvious what part, if any, of the section was applicable and imposed such an obligation. Secondly, although a copy of the solicitors' bill of costs for $5,048.39 had been annexed to the written application,[13] Ms Brennan was unable on the day to put forward any evidence that might have proved that the costs were incurred as a result of the Usatovs' breach of the alleged obligations or any evidence of the reasonableness of the amount of the bill of costs.
4. Accordingly, and anticipating that Mr Wagner and Ms Brennan would seek the assistance of their solicitors to remedy the inadequacies in the information, I made the following orders:
   1. The hearing is adjourned to a date and time to be fixed by the principal registrar, before me, so that the applicants may

(a) make a submission as to what part of section 32 of the Sale of Land Act 1962 required the respondents to include, in their section 32 statement to the applicant, the existence of the section 173 agreement; and

(b) provide evidence of why the amount of their solicitor's bill of costs was reasonable and whether the applicants incurred those costs as a result of any failure of the respondents to comply with section 32 of the Sale of Land Act.

1. The parties are notified that an affidavit or statutory declaration by the solicitor as to part (b) of paragraph 1 of that order will be sufficient unless it is challenged at the hearing.
2. Any such affidavit or statutory declaration shall be served upon the respondents at least 7 days before the hearing date. If the respondents intend to challenge it they must notify the applicants in writing before the hearing date.
3. The principal registrar shall arrange for a Russian interpreter to attend the adjourned hearing.
4. The solicitors for Mr Wagner and Ms Brennan proceeded to file two documents on their behalf. One was a submission of law. It did little more than assert that s 32(2)(b) was the part of s 32 which had obliged the Usatovs to make disclosure of the requirement to create the Section 173 Agreement because it was an 'easement, covenant or similar restriction affecting the land'. The other was a statutory declaration of John Aubrey Wallis, solicitor, made on 8 August 2014. The significant paragraphs in the statutory declaration were:
   1. that I have sighted the Orders made on 9th of May 2014 in this matter.
   2. that the Bill of Costs referred to in paragraph 1 (b) was prepared by my office using the appropriate scale for calculation of costs and I am satisfied that it accurately reflects the costs of this firm in acting for the applicants in this matter.
   3. these costs were reasonably incurred in dealing with the defendant's failure to disclose the existence of the Section 173 Agreement referred to in paragraph 1 (a) of the orders.
   4. the costs were incurred due to the failure by the respondents to disclose in the Section 32 Statement the existence of the proposed Section 173 Agreement. This agreement imposed significant obligations upon the applicants and respondents and on the sale of the land such obligations passed to the applicants.
   5. to enable the Section 173 Agreement to be removed or modified the applicants were obliged to become part of the respondents application to VCAT as by the time such application was brought they were the owners of the land which was affected by that Section 173 Agreement.
5. The date fixed for the adjourned hearing was 18 August 2014. The parties again attended in person and a Russian interpreter was present. The Usatovs admitted that they had received a copy of the statutory declaration of Mr Wallis. They had not notified the applicants that they intended to challenge it, and they did not seriously dispute it at the hearing. I accept Mr Wallis's evidence contained in the statutory declaration. The thrust of the Usatovs' evidence was that any failure to disclose the facts that led to the making of the Section 173 Agreement was not their fault because they had engaged a planning consultant to do whatever had to be done in relation to the planning permit.
6. At the end of the hearing I reserved my decision. I needed to consider whether the Usatovs' non-disclosure amounted to a contravention of s 32 of the Sale of Land Act. The filed submission had not assisted me much in that regard.
7. When beginning to consider my decision I noticed the gap in the evidence concerning the planning permit. There had been no direct evidence of whether it had been issued, or when, or of its contents. So I requested the registrar of VCAT's Civil Division to write to the parties, which the registrar did on 25 August 2014. The letter included the following paragraphs:

Under s 86 of the Planning and Environment Act 1987, if a Tribunal order requires a responsible authority to issue a permit, the responsible authority must issue that permit within 3 business days after the first ordinary meeting of the responsible authority held after it receives a copy of the order.

Accordingly, Senior Member Vassie considers that it is open to the Tribunal to infer that the Yarra Ranges Shire Council, acting regularly following the order of 20 October 2008, issued the permit containing the relevant condition and did so before 12 March 2009.[14]

If either party wishes to contend that the Tribunal should not draw that inference, or to contend that the facts are otherwise, or to have a further hearing for any other reason, that party must notify the principal registrar in writing by 12 September 2014.

If a party does not notify the principal registrar by that date, the proceeding shall be listed for a further hearing.

If neither party so notifies the principal registrar by that date, Senior Member Vassie shall proceed to give a decision and, in doing so, shall draw the inference that the permit with the relevant condition about the s 173 agreement was issued before 12 March 2009.

Neither party responded to that letter, by written notification to the principal registrar or otherwise, by 12 September 2014 or at all.

1. Even without drawing the inference to which the registrar's letter referred, and despite the gap in the evidence, I consider that there is sufficient to enable me to make findings about the planning permit. The Section 173 Agreement, which the Usatovs had signed, defined 'Permit' in terms of planning permit YR-2006/573 issued on 31 October 2008 pursuant to VCAT's determination dated 20 October 2008. Recital C of the Section 173 Agreement set out condition 14 of that permit. The Section 173 Agreement took the form of a deed. A party who executes a deed is estopped (legally prevented) from denying that the facts set out in the deed are true, but the estoppel only applies between the parties to the deed and those claiming through them.[15] So, although the Usatovs would be estopped from denying to Yarra Ranges Shire Council that a permit containing condition 14 was issued to them on 31 October 2008, they would not be estopped from denying it to Mr Wagner and Ms Brennan. But they have not denied it. The Section 173 Agreement affords evidence as their admission that such a permit issued on that date. They did not give any evidence to the contrary. So I find that on 31 October 2008 Yarra Ranges Shire Council issued to the Usatovs a planning permit which contained condition 14 as set out in Recital C to the Section 173 Agreement. If I need to draw the inference to which the registrar's letter to the parties referred (although I do not think that I need to), I draw that inference when making the finding.

1. Not without some difficulty, I have concluded that the Usatovs contravened s 32 of the Sale of Land Act because the planning permit containing condition 14 was an 'approved proposal' affecting Lot 2 which s 32(2)(e) required them to disclose but they did not disclose it.
2. I am not aware of any directly relevant authority, but the decision of Ashley J of the Supreme Court in Bonacci & Anor v Ruyten[16] has assisted me in coming to that conclusion. That case had factual similarities to the present case but two important differences. The plaintiffs, who had purchased land at auction, sought a declaration that they were entitled to rescind the contract because of the defendants' non-compliance with s 32. An amendment to a local planning scheme had allowed there to be a permit for a two-lot subdivision of the land in question but also required the owner to enter into a Section 173 Agreement that would prevent any greater subdivision. No Section 173 Agreement had been entered into before the auction sale occurred. The judgment made no reference to a permit having been issued, so presumably there was none. In their Section 32 Statement the vendors (defendants) had identified the planning scheme but had made no reference to the amendment that had required a Section 173 Agreement. That non-disclosure, the plaintiffs alleged, was a breach of s 32 because there had been non-compliance with either s 32(2)(b) or s 32(2)(e).
3. In that case, as in the present case, there had been a requirement for a Section 173 Agreement which had not been disclosed in a Section 32 Statement but no such agreement had been entered into at the time of sale. Unlike the present case, the requirement for a Section 173 Agreement had arisen from an amendment to the planning scheme, not from a condition in the permit. Unlike the present case, it seems that there was no permit.
4. Ashley J decided that there had been no failure to comply with s 32(2)(b), which required a Section 32 Statement to include a description of 'any easement, covenant or other similar restriction affecting the land'. Once a Section 173 Agreement was registered at the Office of Titles it would create a 'covenant ... affecting the land'.[17] But there was no Section 173 Agreement, registered or unregistered, in existence at the time that the Section 32 Statement had been given, so there was no 'covenant' or 'similar restriction'. That reasoning is applicable to the present case. I do not accept the submission that the Usatovs contravened s 32 by failing to disclose something that s 32(2)(b) required them to disclose.
5. Ashley J went on to decide also that there had been no failure to comply with s 32(2)(e), which required a Section 32 Statement to include particulars of any 'approved proposal' affecting the land. The reason was that the vendors had disclosed the planning scheme, as was required by s 32(2)(c). 'Once the planning instrument was disclosed, the purchasers were placed in the position of being able to access the amendment'.[18]
6. In the course of his judgment, however, Ashley J expressed the view that a planning permit was an 'approved proposal' within the meaning of s 32(2)(e). After expressing his conclusion that there had been no failure to comply with s 32(2)(b), his Honour proceeded to say:
   1. What other provision or provisions could be pertinent? In the case of a requirement imposed by a planning scheme, the answer to that question is subs-s (2)(c). But quite often the obligation to enter into a s 173 agreement is imposed simply by a planning permit. Such a permit, conceivably, may have been acted upon at the time when a property is sold; but the obligation to enter into a s 173 agreement may not have been met. In those circumstances I do not think that the responsible authority would be without remedy against the new owner.
   2. It follows that where an unmet requirement is not apparent on the face of the pertinent planning instrument, it would be unsatisfactory if s 32(2) did not oblige disclosure. The absence of such an obligation would sit uneasily both with the Attorney-General's Second Reading Speech concerning the Sale of Land (Amendment) Act 1982, by which s 32 was inserted, and with the purpose of similar legislation as described by Kirby P in Timanu Pty Ltd v Clurstock Pty Ltd (1988) 15 NSWLR 338 at 339-340.
   3. It appears to me, by reference to sub-s (2)(e), that no such hiatus exists. I consider it well open to conclude that a planning permit may be characterised as an "approved proposal affecting the land" made by a "public authority".
   4. Two authorities give support for the first aspect of that conclusion. The second aspect is self-evident when the planning permit regime is considered.
   5. In Danjeet Nominees Pty Ltd v Ellul (1995) V ConvR 54-521 Beach J concluded that a building permit was an approved proposal of a public authority. In Overton,[19] Ormiston J (at 315) expressed what I take to be a provisional opinion that a planning permit would meet that description.
7. Whether or not those five paragraphs were essential to his Honour's decision, I consider that I ought to follow the view expressed there. So I decide that when, as in the present case, a planning permit contains a condition that requires the owner of the land to enter into a Section 173 Agreement, the planning permit is an 'approved proposal affecting the land' made by a 'public authority' and s 32(2)(e) of the Sale of Land Act obliges the owner to give particulars of it in a Section 32 Statement given to a purchaser before the owner and the purchaser enter into a contract of sale of the land.
8. In paragraph 7 of the Section 32 Statement, the particulars given for 'any ... approved proposal affecting the property of which the Vendor might be reasonably expected to have knowledge' were 'Nil'. There ought to have been disclosure of the planning permit and condition 14 of the permit. The Usatovs might reasonably have been expected to have knowledge of those, and of the VCAT determination in 2008 that had led to the imposition of the condition. They had instigated the application that had resulted in the determination. Moreover in cross-examination Mr Usatov admitted that at the time of sale of Lot 2 he knew of the condition that had required a Section 173 Agreement.
9. There has been no suggestion, and certainly no evidence, that the Usatovs deliberately withheld disclosure of the requirement. It was an unintentional omission to which they alerted Mr Wagner and Ms Brennan soon after settlement. Even if, as they claim, the omission was not their fault, they are liable for the consequence of it. The consequence was that they contravened s 32 of the Sale of Land Act by failing to give particulars of the planning permit and of condition 14, as s 32(2)(e) had required them to do.

1. Section 217 of the Australian Consumer Law and Fair Trading Act 2012 ('the 2012 Act') creates a right of action for a person who suffers loss because of a contravention of that Act and confers upon VCAT a jurisdiction to determine any proceeding brought to pursue that right of action. So far as is presently relevant, s 217 provides:
   • (1) A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.

(3) A proceeding under this section may be brought before VCAT or in any court of competent jurisdiction.

1. Section 48A of the Sale of Land Act is headed 'Application of Australian Consumer Law and Fair Trading Act 2012'. Section 48A(1) provides:

(1) Sections 125, 195 and 196 and Part 8.2 (except section 213) of the Australian Consumer Law and Fair Trading Act 2012 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act.

Section 217 of the Australian Consumer Law and Fair Trading Act is within Part 8.2.

1. The combined effect of those two sections is that a person who claims to have suffered loss as a result of a contravention of a provision of the Sale of Land Act 1962 may bring a proceeding at VCAT, under s 217 of the 2012 Act, to recover the amount of the loss against any person who contravened the provision of the Sale of Land Act. In other words, it is as if the words 'this Act' in s 217 were 'the Sale of Land Act 1962' instead.
2. Accordingly Mr Wagner and Ms Brennan have a right to bring this proceeding to claim compensation for loss arising from the Usatovs' contravention of s 32 of the Sale of Land Act. The fact that the contravention occurred in 2009, before the 2012 Act came into existence, does not matter. The 2012 Act, by s 217, confers a jurisdiction to determine a proceeding based upon a contravention of the Sale of Land Act, whether that contravention occurred before or after the commencement of the 2012 Act.
3. Chapter 7 of the 2012 Act confers another jurisdiction upon VCAT: a jurisdiction to hear and determine a 'consumer and trade dispute', which includes a dispute or claim arising between a purchaser and a supplier of 'services'.[20] The applicable[21] definition of 'services' in the Australian Consumer Law (Victoria) includes an interest in real property that is granted 'in trade or commerce'.[22] The sale of land by the Usatovs to Mr Wagner and Ms Brennan was the supply of an interest in real property, but there was no evidence that could have led to a conclusion that the sale took place 'in trade or commerce'; usually the sale of a residential property by a vendor who is not in the business of selling land or who has not conducted a business upon the property will not be a sale 'in trade or commerce'.[23] So there is no point in considering whether, apart from any obligation that s 32 of the Sale of Land Act imposed, the Usatovs had other obligations under the general law, or under the Section 173 Agreement itself,[24] to disclose the planning permit, or condition 14 of the planning permit, or the Section 173 Agreement, before the contract was entered into or before settlement occurred; VCAT has no jurisdiction to decide such questions.
4. I have decided, however, that there was a contravention of s 32 of the Sale of Land Act. There is jurisdiction under s 217 of the 2012 Act to award the amount of any loss proved to have been suffered because of the contravention.

1. I have accepted the evidence of the solicitor Mr Wallis that Mr Wagner and Ms Brennan reasonably incurred legal costs of $5,048.39 in achieving an outcome that the Section 173 Agreement no longer affects Lot 2.
2. I have considered whether the 'Important notice to purchasers' with which the Usatovs' Section 32 Statement commenced meant that the primary cause of Mr Wagner and Ms Brennan having incurred those legal costs was their failure to make enquiries of Yarra Ranges Shire Council which might have resulted in their having been informed of the planning permit and of condition 14. The Usatovs did not argue that that notice in the Section 32 Statement had that effect. They are self-represented litigants, however, and it seemed to me that I ought to consider the matter even though it was not raised in the hearing.
3. Because in Bonacci & Anor v Ruyten[25] there was no allegation that the vendors had failed to include the 'Important notice to purchasers' in the Section 32 Statement in that case, as required by s 32(2)(ca), I infer that it had been included. The reasons that Ashley J gave for dismissing the plaintiffs' claim did not include the notice or any failure of the plaintiffs to act upon it. At all events, in the present case there was no evidence of what an enquiry of Yarra Ranges Shire Council would have revealed had one been made.
4. So I am satisfied that Mr Wagner and Ms Brennan suffered loss in an amount of $5,048.39 'because of' the Usatovs' contravention of s 32 of the Sale of Land Act, not because of any other reason. Had the Usatovs included in the Section 32 Statement proper particulars of the permit and of Condition 14 Mr Wagner and Ms Brennan could have required the Usatovs to promise to meet any cost involved in removing Lot 2 from the scope of Condition 14. By virtue of s 217 of the 2012 Act they are entitled to recover the amount of that loss.

1. For the above reasons there will be an order that the Usatovs pay Mr Wagner and Ms Brennan $5,048.39.
2. Because they have substantially - in fact entirely - succeeded in this proceeding, which is a 'small claim' within the meaning of the Victorian Civil and Administrative Tribunal Act 1998, they are entitled to an order that the Usatovs reimburse them the fee of $132.30 that they paid upon the filing of this proceeding.[26] I shall make an order for reimbursement of that fee.

[1] Australian Consumer Law and Fair Trading Act 2012 s 217. See paragraphs 45 to 48 below.

[2] Usatov v Yarra Ranges SC [2008] VCAT 2109. The determination described VCAT Reference No P1096/2008 and Permit Application No YR-2006/573.

[11] For some unexplained reason Mr Usatov alone made the application to VCAT.

[12] The determination described VCAT Reference No P 3171/2010 for the Usatov application, VCAT Reference No P 2523/2011 for the Wagner and Brennan application, and Permit Application No

[13] Oddly, the bill of costs was addressed to the Usatovs, not to Mr Wagner and Ms Brennan who were obviously the solicitors' clients. All the work that the bill of costs described, however, was obviously work done for those clients, and it was they who would have the primary liability to pay those costs if they had been reasonably incurred and if the amount was reasonable.

[14] The contract of sale was dated 12 March 2009. Before signing the contract Mr Wagner and Ms Brennan received the Section 32 Statement.

[15] Commissioner of Taxes (Queensland) v Ford Motor Co of Australia Pty Ltd [1942] HCA 16; (1942) 66 CLR 261.

[16] [2000] VSC 138; (2000) V ConvR [54-631].

[17] PE Act s 182: see paragraph 15 above.

[18] [2000] VSC 138 at [41].

[19] The reference is to Overton v Baker [1997] 2 VR 297, which Ashley J had cited at [22] and [24].

[22] Australian Consumer Law (Victoria) s 2, paragraph (a) of the definition of 'services'.

[23] Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd [2004] VSCA 242 at [22].

[24] Clause 4.12.4 of the Section 173 Agreement, set out in paragraph 22 above, may well have given rise to such an obligation.

[25] [2000] VSC 138; (2000) V ConvR [54-631].

[26] Victorian Civil and Administrative Tribunal Act 1998 s 115C(1)(a), (2).