Williams v Pagliuca

(1) Appeal allowed in part. DECISION: (2) Orders 2 and 3 made on 11 August 2008 set aside, and in lieu thereof judgment for the Vendors against the Solicitor in an amount of $55,500, and the Vendors are awarded interest calculated from 4 November 2005 to 31 July 2007 in the amount of $23,844, such orders to take effect as at 11 August 2008. (3) Vendors to pay the Solicitor's costs of the appeal, and to have a certificate under the Suitors' Fund Act 1951 if otherwise eligible.

CATCHWORDS: LEGAL PRACTITIONERS - Duty of skill and care - Solicitor acting for vendor and purchaser - Solicitor fails to ensure exchanged counterparts identical - Vendor and purchaser, not knowing this, agree to substitute different property - Solicitor prepares new contract - Vendor and purchaser disagree as to terms of new contract - Purchaser withdraws from transaction - Whether solicitor in breach of duty in relation to contract for substituted property - Whether loss caused by any such breach. - DAMAGES - Solicitor breaches duty of care to vendor of property in failing to ensure exchanged counterparts identical - Purchaser subsequently withdraws from transaction - Purchaser alleges misrepresentation by estate agent as to size of bedroom - Damages assessed for loss of chance.

LEGISLATION CITED: Fair Trading Act 1987, ss 41, 42, 45, 70 Trade Practices Act 1974 (Cth)

Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 CASES CITED: Hammond v Minister for Works (1992) 8 WAR 505 Larking v Great Western (Nepean) Gravel Limited [1940] HCA 37; (1940) 64 CLR 221 Winnote Pty Limited v Page [2006] NSWCA 287; (2006) 68 NSWLR 531

Peter WILLIAMS (appellant) PARTIES: Antonio PAGLIUCA (first respondent) Domenique PAGLIUCA ( second respondent)

COUNSEL: G CRADDOCK, SC/ G CURTIN (appellant) C M HARRIS, SC (respondents)

SOLICITORS: Colin Bigger & Paisley (appellant) Willis & Bowring (respondents)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT DATE OF DECISION: 7 March 2008, 11 March 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Parkin v Pagliuca [2008] NSWSC 168, Parkin v Pagliuca [2008] NSWSC 827

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40304/08 SC 2068/06

HODGSON JA IPP JA SACKVILLE AJA

19 AUGUST 2009 Peter WILLIAMS v Antonio PAGLIUCA and Anor Headnote

Facts: The appellant ("the Solicitor") was retained by the respondent ("the Vendors") in about March 2004 to act on the sale of units in a unit complex being constructed by Mr Pagliuca. The Solicitor was also retained by the Purchaser in about April 2004 at a time when she wished to purchase Unit 5 in the complex.

On 29 June 2004, the Solicitor purportedly exchanged contracts for the purchase of Unit 5 by the Purchaser from the Vendors for $585,000; but the counterparts were not identical.

In about February 2005, when the unit complex was about half constructed, there were discussions between the Purchaser and Mr Pagliuca concerning the small size of the main bedroom in Unit 5; and it was agreed that the Purchaser would purchase Unit 1 in the complex instead of Unit 5.

The Solicitor was retained by the Vendors and the Purchaser to prepare a deed of rescission in respect of Unit 5 and a new contract for the sale of Unit 1 from the Vendors to the Purchaser for the same price.

By about July 2005 the Solicitor had prepared the documents, which as prepared apparently contained a term requiring the Purchaser to bear the expense of certain alterations. However at that time it appears there were continuing negotiations between the Purchaser and the Vendors as to who was to bear these expenses.

These documents were not exchanged, nor executed by the Vendors due to the negotiations over expenses.

On 9 September 2005, the Purchaser retained new solicitors to act for her; and these solicitors sent a letter to the Solicitor giving notice of rescission of the contract for Unit 5, relying on failure to attach certain documents to the contract. These solicitors later ascertained that the exchanged counterparts were not identical and claimed that for that reason also the Purchaser was not bound by the contract.

In November 2005, the Vendors retained new solicitors, who indicated an intention to commence proceedings against the Purchaser for specific performance. These solicitors gave a notice to complete to the Purchaser requiring completion by 10 February 2006; and on 14 February 2006 they gave a notice of termination of the contract on the basis of the Purchaser's failure to complete.

The Purchaser brought proceedings in the Equity Division against the Vendors claiming a declaration that the contract was not valid and binding, and an order that all monies paid pursuant to the purported contracts be refunded with interest.

The Vendors put on a First Cross-Claim against the Purchaser, claiming damages for repudiation of contract.

The Purchaser's defence to the First Cross-Claim relied on the non-existence of the contract, or in the alternative, misrepresentations about the size of the main bedroom inducing the purchase of the Unit.

The Vendors put on a Second Cross-Claim against the Solicitor, claiming negligence in relation for the purported exchange of contracts on Unit 5, and breaches of contract and duty of care in failing to act expeditiously in relation to rescission of the original contract for Unit 5 and entry into a contract for the purchase of Unit 1.

The Purchaser put on a Third Cross-Claim against the Solicitor claiming damages for breaches of duty by the Solicitor in acting for the Purchaser in her dealings with the Vendors.

On 7 March 2008, Bryson AJ gave his first judgment in the proceedings, on the basis of which he (1) made the declaration sought by the Purchaser, ordered the Vendors to refund the deposit paid under the purported contract to the Purchaser, together with interest, and ordered the Vendors to pay the Purchaser's costs of the proceedings; (2) gave judgment for the Purchaser on the First Cross-Claim with costs; (3) on the Second Cross-Claim, gave judgment for the Vendors for damages to be assessed, with costs; and (4) on the Third Cross-Claim, gave judgment for the Purchaser for nominal damages with costs on an indemnity basis (but giving credit for costs otherwise recovered from the Vendors). The judgment for the Vendors on the First Cross-Claim was on the basis of breach of duty by the Solicitor in relation to the proposed purchase of Unit 5.

On 11 August 2008, the primary judge gave his second judgment in the proceedings, on the basis of which he ordered that there be interest on the costs orders in the Purchaser's proceedings and the Third Cross-Claim; that on the Second Cross-Claim there be judgment for the Vendors in an amount of $185,000 plus interest to 31 July 2007 in an amount of $79,480; and that the costs recoverable by the Vendors against the Solicitor include the costs payable by them to the Purchaser as costs of the Purchaser's proceedings. The award of damages was on the basis of breaches of duty by the Solicitor in relation to the proposed purchase of Unit 1, the judge making no finding of loss in relation to Unit 5.

The Solicitor appealed against the Vendors from orders made on the Second Cross-Claim.

Issues: 1. Whether any and if so what loss was caused by the Solicitor's breach concerning the proposed contract for Unit 5. 2. Whether there was a breach by the Solicitor concerning the proposed contract for Unit 1. 3. Whether any and if so what loss was caused by any breach concerning Unit 1. 4. Whether the primary judge was correct in ordering that the Solicitor reimburse the Vendors for the costs they were ordered to pay the Purchaser.

HELD (Allowing the appeal in part, setting aside orders of the primary judge and in lieu ordering judgment for the Vendors of $55,000 plus interest): (1) (per Hodgson JA, Ipp JA and Sackville AJA agreeing) The Solicitor's breach in relation to Unit 5 caused the loss by the Vendor of the chance of obtaining the bargain of a completed contract for the sale of Unit 5. Taking into account factual matters (at [34]-[38]) damages are to be assessed at 30 per cent of the total loss of bargain.

(per Sackville AJA) The primary judge incorrectly made the finding that but for the Solicitor's negligence, the Vendors would nevertheless have issued a notice to complete and been unable to complete themselves, preventing their entitlement to enforce the contract.

(2) (per Hodgson JA, Ipp JA and Sackville AJA agreeing) The Solicitor breached no duty towards the Vendors concerning Unit 1: (i) A breach arising from inadvertent failure to ensure exchanged counterpart contracts are identical is not ongoing: Larking v Great Western (Nepean) Gravel Limited [1940] HCA 37; (1940) 64 CLR 221; Hammond v Minister for Works (1992) 8 WAR 505; Winnote Pty Limited v Page [2006] NSWCA 287; (2006) 68 NSWLR 531. (ii) By acting for both parties, the Solicitor would have to have acted even-handedly: advising both parties of the non-existence of the original contract for Unit 5; and seeking consent of the Purchasers before advising the Vendors to act expeditiously. (iii) The evidence did not support a finding that delay in preparing the deed of rescission and advising the Vendors to finalise the contract amounted to a breach of duty.

(3) (per Hodgson JA, Ipp JA and Sackville AJA agreeing) No loss was caused by the Solicitor in relation to Unit 1. As per (2), against the findings of the primary judge, any breach concerning Unit 1 should be considered on the basis that the Solicitor did not know there was no contract for Unit 5 and so could not advise the Vendors that there was no contract. Even if the Solicitor breached any alleged duty to advise the Vendors to act expeditiously, there was no sound basis for concluding that the Vendors would have capitulated on the negotiations as to expenses and finalised the contract.

(4) (per Hodgson JA, Ipp JA and Sackville AJA agreeing) By maintaining the existence of an enforceable contract in relation to Unit 5 until a late stage of the hearing, the Solicitor contributed to the Vendors incurring the costs they were ordered to pay the Purchaser, justifying the primary judge's discretionary use of a Bullock order for costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40304/08 SC 2068/06

HODGSON JA IPP JA SACKVILLE AJA

19 AUGUST 2009 Peter WILLIAMS v Antonio PAGLIUCA and Anor Judgment 1 HODGSON JA: Donna Parkin ("the Purchaser") brought proceedings in the Equity Division against the respondents ("the Vendors" or "Mr and Mrs Pagliuca") claiming a declaration that a certain document did not constitute a valid and binding contract, and an order that all monies paid pursuant to the purported contracts be refunded with interest. 2 The Vendors put on a First Cross-Claim against the Purchaser, claiming damages for repudiation of contract; and a Second Cross-Claim against the appellant ("the Solicitor") claiming damages for breaches of duty by the Solicitor in acting for the Vendors in their dealings with the Purchaser. 3 The Purchaser put on a Third Cross-Claim against the Solicitor claiming damages for breaches of duty by the Solicitor in acting for the Purchaser in her dealings with the Vendors. 4 On 7 March 2008, Bryson AJ gave his first judgment in the proceedings, on the basis of which he (1) made the declaration sought by the Purchaser, ordered the Vendors to refund the deposit paid under the purported contract to the Purchaser, together with interest, and ordered the Vendors to pay the Purchaser's costs of the proceedings; (2) gave judgment for the Purchaser on the First Cross-Claim with costs; (3) on the Second Cross-Claim, gave judgment for the Vendors for damages to be assessed, with costs; and (4) on the Third Cross-Claim, gave judgment for the Purchaser for nominal damages with costs on an indemnity basis (but giving credit for costs otherwise recovered from the Vendors). 5 On 11 August 2008, the primary judge gave his second judgment in the proceedings, on the basis of which he ordered that there be interest on the costs orders in the Purchaser's proceedings and the Third Cross-Claim; that on the Second Cross-Claim there be judgment for the Vendors in an amount of $185,000 plus interest to 31 July 2007 in an amount of $79,480; and that the costs recoverable by the Vendors against the solicitor include the costs payable by them to the Purchaser as costs of the Purchaser's proceedings. 6 The Solicitor brings this appeal against the Vendors from orders made on the Second Cross-Claim.

Circumstances 7 The Solicitor was retained by the Vendors in about March 2004 to act on the sale of units in a unit complex being constructed by Mr Pagliuca. The Solicitor was also retained by the Purchaser in about April 2004 at a time when she wished to purchase Unit 5 in the complex. 8 On 29 June 2004, the Solicitor purportedly exchanged contracts for the purchase of Unit 5 by the Purchaser from the Vendors for $585,000; but the counterparts were not identical, and the primary judge held that no contract came into existence. There is no challenge now to that aspect of his decision. 9 In about February 2005, when the unit complex was about half constructed, there were discussions between the Purchaser and Mr Pagliuca concerning the small size of the main bedroom in Unit 5; and it was agreed that the Purchaser would purchase Unit 1 in the complex instead of Unit 5. 10 The Solicitor was retained by the Vendors and the Purchaser to prepare a deed of rescission in respect of Unit 5 and a new contract for the sale of Unit 1 from the Vendors to the Purchaser for the same price. 11 The primary judge made no finding as to when it was that the Solicitor was given instructions as to the conditions to be included in the new contract; but it is clear that by about July 2005 the Solicitor had prepared the documents, which as prepared apparently contained a term requiring the Purchaser to bear the expense of certain alterations. However at that time it appears there were continuing negotiations between the Purchaser and the Vendors as to who was to bear these expenses. 12 At around this time, the Purchaser executed the documents prepared by the Solicitor, but gave instructions to the Solicitor not to exchange because of the continuing negotiations about these expenses. The Vendors did not execute these documents. The primary judge made no finding as to when it was that the Solicitor gave the documents to the Vendors. 13 On 9 September 2005, the Purchaser retained new solicitors to act for her; and on 30 September 2005 these solicitors sent a letter to the Solicitor giving notice of rescission of the contract for Unit 5, relying on failure to attach certain documents to the contract. These solicitors later ascertained that the exchanged counterparts were not identical and claimed that for that reason also the Purchaser was not bound by the contract. 14 In November 2005, the Vendors retained new solicitors, who on 21 November 2005 indicated an intention to commence proceedings against the Purchaser for specific performance. On 23 January 2006, these solicitors gave a notice to complete to the Purchaser requiring completion by 10 February 2006; and on 14 February 2006 they gave a notice of termination of the contract on the basis of the Purchaser's failure to complete on 10 February 2006. 15 The Purchaser commenced the proceedings on 28 March 2006. 16 In the Second Cross-Claim brought by the Vendors against the Solicitor, in addition to alleging negligence against the Solicitor in relation to the purported exchange of contracts for Unit 5, the Vendors also alleged negligence in relation to the proposed contract in relation to Unit 1, as follows: 12. In about the first week of February 2005 the Defendants instructed Williams that they had agreed with the Plaintiff that, instead of her purchasing unit 5 from them, she would purchase unit 1, and they requested that he prepare, and have executed, the necessary documentation to put this agreement into effect. Particulars The instructions and request were oral and were made by the first named Defendant to Williams.

13. Williams advised the Defendants that it was not necessary to rescind the Contract for the purchase of Unit 5, and/or to enter into a new Contract with the Plaintiff for the purchase of Unit 1 at that time, but that these documents could be prepared and executed when construction of the units had been completed and the Strata Plan was registered. Particulars The advice was oral and was given by Williams to the First Defendant.

14. The advice referred to in paragraph 13 was negligent. Particulars It was important, for the protection of the Defendants from financial loss, that documentation be prepared and executed as soon as possible to create enforceable agreements between the Plaintiff and the Defendants to reflect the oral agreements they had made as instructed by the First Plaintiff to Williams.

19. The losses in paragraph 15 above were caused by breach by Williams of the contract and/or breach of the duty of care referred to in paragraph 3 above. Particulars of Breach of Contract and Breach of Duty of Care (i) failing to ensure that the Deed of Rescission was expressed to be conditional on a contract for the purchase of unit 1 coming into existence;

(ii) failing to ensure that the rescission of the contract to purchase unit 5, and the contract to purchase unit 1, came into existence in February 2005 or within a reasonable time after the instructions referred to in paragraph 12 above were give to Williams;

(iii) failing to ensure that an enforceable agreement for the purchase by the Plaintiff of unit 1 came into existence. 17 The Purchaser's defence to the First Cross-Claim originally relied essentially on the non-existence of a contract. However, on the first day of the hearing before the primary judge, the Purchaser sought and was granted leave to amend her defence to the First Cross-Claim, inter alia by adding the following paragraphs: 19. In further answer to the whole of the First Cross Claim, the Cross Claimant made a representation to the First Cross Defendant. PARTICULARS a. The representation was made in June 2004;

b. Was made by the Cross Claimant through its agent Peter King;

c. Was made to the First Cross Defendant personally;

e. Represented that the main bedroom in the unit when constructed would be a standard sized bedroom and would be the same size as the bedroom in the First Cross Defendant's then unit at Unit 1, 13-17 Searl Road, Cronulla.

20. Relying upon and induced by the said representation the First Cross Defendant agreed to purchase the said unit.

21. At the time of the making of the representation the Defendant knew or ought to have known that the representation was false or in the alternative made the said representation recklessly without caring whether it was true or false.

Decision of primary judge 18 In his first judgment, the primary judge found that there was no contract in relation to Unit 5, and that in this respect the Solicitor had been negligent. 19 Accordingly, he found that the Purchaser was entitled to the declarations she sought in her proceedings and to the return of the deposit with interest; and he dismissed the First Cross-Claim with costs. He found that the Solicitor was liable to the Purchaser, her damages being the costs of the litigation; and on that basis, he made the orders in relation to the Third Cross-Claim referred to earlier. 20 In relation to the Second Cross-Claim, the primary judge said this: [45] By the Second Cross-claim Mr and Mrs Pagliuca claimed damages against Mr Williams. If Mr Williams had, at or by 29 June 2004, noticed the discrepancy between the two counterparts and taken a complete counterpart back to Ms Parkin for her approval it is highly probable, indeed fairly certain, that she would have accepted his view about what it was appropriate for her contract to contain. That is to say, if Mr Williams had conducted the preparation of the two counterparts and the exchange properly the vendors would have had enforceable contractual rights against Ms Parkin for the sale of Unit 5 for $585,000. Her evidence shows that she had resources, including approved finance with which she could have completed that purchase. It is plain that Mr Williams was negligent in the performance of this routine and ordinary part of the work of a solicitor conducting conveyancing business; checking for and obtaining corresponding counterparts is an elementary part of conveyancing work. On the cross-claim I propose to give judgment for the vendors against Mr Williams for damages with respect of the loss of bargain, and for any other damages which they show. As the assessment of damages may not be complex I will address the assessment of damages myself, in the first instance. If there are any elaborate factual enquiries involved I may refer the assessment of damages to an Associate Justice; but I hope that this may not be necessary. The damages include the loss on resale: there was no entitlement to compel Ms Parkin to complete the sale of Unit 5 and pay $585,000 for it so the claim that Mr Pagliuca should have pursued specific performance and not resold at a loss lacks any basis. In any event his evidence about the financial circumstances which led him to decide on a resale rather than a suit for specific performance convincingly disposed of the claim that he had not acted reasonably to mitigate his loss. In my impression the matters requiring consideration are minor: whether costs of work on Unit 5 and Unit 1 are parts of the damages recoverable against Mr Williams, and whether there is any double counting if they are allowed. 21 However, earlier in this judgment the primary judge had made the following findings in relation to matters concerning the size of the main bedroom of Unit 5, which led to the agreement that the Purchaser purchase Unit 1 instead (the Mr King referred to in this excerpt being the Vendors' real estate agent): [23] According to Ms Parkin's evidence representations were made to her before 29 June 2004, during the period of negotiation, by Mr Peter King about the size of the bedroom on the first floor of Unit 5. There is no plan in evidence which shows the interior dimensions. The registered Strata Plan should show them: but it is not in evidence, and was not prepared until long after 29 June 2004. A Draft Strata Plan may have shown them: Mr Williams referred to the Draft Strata Plan as if it were an annexure in Additional Clause 31.1 but it was not annexed to either counterpart and may not yet have existed. On the plans annexed to the counterparts no interior dimensions are given. The bedroom on the first floor is depicted as the location of a double bed, but there is no statement about the dimensions of the bed. Similarly for a wardrobe. On the floor plan for the first floor level there are some exterior dimensions but they are not complete and do not show the exterior dimensions of the part of Unit 5 which is on the first floor; there are no interior dimensions. On the floor plan for the ground floor there are no exterior or interior dimensions. High inherent probability supports the plaintiff's evidence that she enquired about internal dimensions before signing the counterpart, and received representations about the size of the unit.

[24] The representations which she says Mr King made to her were not very precise but I have no difficulty in accepting, notwithstanding his denial of evidence, that he made them. Mr Pagliuca's evidence shows that some problem or experience which he encountered in the course of construction meant that the first-floor bedroom was not as big as he had expected, and was unsatisfactory in some way. He had misapprehensions about the size of the first-floor bedroom, expected the plaintiff to be dissatisfied with it, and entered into renegotiation with her in which the size of the first-floor bedroom was the prime subject; this led to arrangements, which were never carried through, for her to enter into a contract to buy Unit 1 and give up the project of buying Unit 5.

[25] According to Ms Parkin's evidence, she was assured, at an early stage in negotiations, by Mr King that the bedroom on the first floor was a standard sized bedroom, and Mr King saw the bedroom in the dwelling she then occupied, stepped out its dimensions and told her that the bedroom on the first floor of Unit 5 was the same size. Mr King denied that he had made representations like these, and also he had seen the bedroom of Ms Parkin's then dwelling, or stepped it out. I accept Ms Parkin's evidence about the representations; it is very strongly supported by the probabilities. It would be difficult for two people to talk intelligently about the proposed purchase of an as yet unbuilt home unit off-the-plan without discussions turning to the subject of the size of the rooms; if there is anything improbable about her evidence, it is that she asked so little. The representation that the bedroom would be a standard sized bedroom means very little until Mr Pagliuca's concerns about the size of the bedroom at a later stage become known. It is plain from Mr Pagliuca's evidence that the first-floor bedroom as constructed was not of a standard size, or of a size acceptable to Ms Parkin; this was clear to Mr Pagliuca and explains his being ready to enter into further discussions about the subject. While I dispose of the litigation on other grounds and the effects of the misrepresentations have not been put to the test, it is probable that Ms Parkin would have been entitled to some significant remedy in respect to the misrepresentation if there had been an attempt to enforce the contract against her; she may be entitled to rescission, to some statutory remedy or to resist specific performance on grounds of hardship.

[26] Discontent with the bedroom as constructed was one of the principal sources of Ms Parkin's dissatisfaction with the purchase. Another source was that she came to believe, correctly, that the value of the unit when constructed would be considerably less than the amount that she agreed to pay. By early 2005, about February, she was very discontented with the sale, to the point where she conducted negotiations with Mr Pagliuca about substituting Unit 1 for Unit 5. 22 It is also to be noted that, in dismissing the Vendors' cross-claim, the primary judge also said this: [41] The First Cross-claim by the purchasers against Ms Parkin is founded upon Notice to Complete which they gave on 23 January 2006, followed by notice of termination. They claim damages and allege that she failed to complete her contract and purchase Unit 5, so that they suffered damages when they resold Unit 5 at auction for a much lower price. If (contrary to my decision) there had been a contract in the terms of one or other of the counterparts and it had still been on foot in January 2006, the vendors would not have been entitled to call for completion because they were not themselves in a position to complete; the work which they were to do under Additional Clause 50 on Unit 5 had in part been reversed, so some of the items of work they were required to do had in effect not been carried out, and the vendors were not in a position to comply with Additional Clause 50. For this reason alone (and there may have been others) they were not able to complete themselves in accordance with their Notice to Complete. The Pagliucas are not entitled to these damages. 23 In the second judgment, dealing with the question of quantification of the Vendors' damages against the Solicitor, the primary judge said this: [5] In the judgment I did not express the detail of other particulars of negligence which had been the subject of claims in this cross-claim and of some reference during the hearing and argument, although they were not put forward as prominently as with hindsight appears appropriate. Mr Williams was also charged with negligence in failing to advise Mr and Mrs Pagliuca, particularly Mr Pagliuca who conducted their communications, to enter into a contract with Ms Parkin for the sale of Unit 1 as soon as it was possible to do so. He was also charged with negligence in failing to ensure that an enforceable agreement for the sale of Unit 1 came into existence for Unit 1 as soon as possible after the Pagliucas and Ms Parkin made an arrangement about Unit 1. The reference to ensuring a result is an overstatement of his duty, but generally the particular is relevant. Mr William should have taken reasonable steps to bring about an enforceable agreement for the sale of Unit 1.

[6] If attention is confined to the particular of negligence to which I gave most attention in my earlier reasons, that is failing to bring about an exchange of contracts in enforceable form by having the two counterparts agree, there are in my opinion real difficulties for awarding the damages claimed. 24 He went on to identify what he saw as the main difficulties for awarding damages for the breach in relation to the purported exchange of contracts for Unit 5, namely Mr King's misrepresentation as to the size of the main bedroom that may have given a remedy under the Trade Practices Act 1974 (Cth), and the circumstance that, as at the date specified in their notice to complete, the Vendors were not in a position to complete themselves because they had not done the works on Unit 5 that additional cl 50 of the intended contract required. He concluded: [9] If the Pagliucas' claim under the first heading of negligence against Mr Williams is viewed as I feel it probably should be as a claim for loss of chance to obtain completion by Ms Parkin of the contract, the effect of misrepresentation would come under consideration in evaluating the chance of completion but in my judgment would not dominate the outcome, because supervening events show that the chance would not have had a favourable realisation. I say this because the Pagliucas, if they had an entitlement to completion, lost it when they gave notice to complete but were not in a position to complete themselves. 25 He dealt with the question of breaches in relation to the agreement for the sale and purchase of Unit 1 instead of Unit 5 as follows: [10] I turn to consider the entitlement of the Pagliucas on the second and third particulars of negligence. Although Ms Parkin voiced with some forcefulness her dissatisfaction with the size of the bedroom as constructed, and was able when at a relatively late stage the subject became part of her case to put forward what I found to be convincing material about a representation made by Mr King, it was not she who brought the size of the bedroom to the forefront in discussion with Mr Pagliuca. It would seem that when Mr Pagliuca saw the bedroom as constructed he recognised that its small size was likely to lead to trouble, because early in 2005, about February, he opened discussion with Ms Parkin about whatever problems that might give rise to, and the discussion led to consideration by them both of an arrangement in which Ms Parkin would buy Unit 1 and not Unit 5. As had been the case with Unit 5, Ms Parkin had particular and detailed special arrangements which she required if she were to buy Unit 1, somewhat similar to the tableau of special requirements which had led to inclusion of Additional Condition 50 in the purported Contract for Unit 5.

[11] These were under discussion, it would seem for months, but the discussions never reached completion in that one issue remained outstanding in September 2005 when the deterioration in the relationship began to show itself. What was not agreed on was that Ms Parkin required Mr Pagliuca to bear the cost of alterations she required (and needed) to the bathroom of Unit 1. No agreement was ever reached on this. It seems that the negotiations broke off in or about September when both sides took their instructions away from Mr Williams and consulted separate solicitors of their own.

[12] Mr Williams had earlier, by July, prepared documents which if they had been given effect would have had the result that the agreement for sale of Unit 5 was rescinded and a new agreement for the sale of Unit 1 was entered into. Ms Parkin approved these documents up to a point and went so far as to sign them, but did not authorise Mr Williams to exchange contracts with the Pagliucas, while the Pugliucas did not go so far as to sign them at all.

[13] The burden of the complaint in the second particular depends upon the assumption that if he had been acting reasonably Mr Williams would have known that the previous agreement for the sale of lot 5 was ineffective and could not be enforced. Once that understanding is attributed to him (and in my opinion it should be) it becomes clear and obvious that it was his duty when advising the Pagliucas to point out how very much depended on coming to agreement on Unit 1 and doing so expeditiously. This was his duty to the Pagliucas: no less so because he had another client and may have had another and conflicting duty to her.

[14] Evidence elicited from Ms Parkin shows that one basis of her discontent, by no means the only one, was a view that the value of the property late in 2005 was less than she had agreed to pay the previous year. If she knew this, Mr Pagliuca was in a much better position to know it, because he had a number of units to sell. It seems to me that if the full position about the vulnerability of the agreement to sell Unit 5 had informed Mr Williams' advice to Mr Pagliuca and if Mr Pagliuca had been told the position in any clear way, he would have been unlikely to let the cost of altering a bathroom stand in the way of getting a sale.

[15] The third particular, which I interpret as failing to take reasonable steps to bring about an enforceable sale of Unit 1, is really ancillary to the second. They both come back to Mr Williams not clearly knowing what the predicament was and not pointing it out to Mr Pagliuca.

[16] On an address to the probabilities of what would have happened in the hypothetical situation that Mr Pagliuca had been told the real need to disentangle himself from the sale of Unit 5 and make a sale of Unit 1 it is highly likely that he would have smoothed over any difficulties relating to work on the bathroom or any other condition, and he would have proceeded to sell Unit 1 to Ms Parkin, who until a very late stage continued to wish to live in one of the units.

[17] In those hypothetical events it is extremely unlikely that there would not have been completion of Unit 1 at the sale price formerly agreed for Unit 5; Ms Parkin was ready and willing to buy, and she was also able as she had finance approved. Timely advice would have brought about a successful sale, before she set solicitors in motion looking for grounds on which she could escape from the sale of Unit 5, which after several months they found.

[18] No difficulties of the kind relating to misrepresentation to which I earlier referred would have been encountered, because Unit 1 was there for her to look at and come to a view about whether the size of the rooms was satisfactory. It is very unlikely that Mr Pagliuca would have failed to carry out the special conditions which she would have required for a sale of Unit 1. If Mr Williams had not conducted business negligently as referred to in the second and third particulars, the Pagliucas would have sold and completed the sale of Unit 1, recovered $585,000 on the sale, incurred expense in doing so which would only have been a negligibly different to the expense which they would have incurred in completing the sale of Unit 5 in good circumstances, but instead of that all they got was $400,000 on the sale of Unit 5.

[19] It is probable that sale of Unit 1 would have been settled on much the same time scale as had been contemplated earlier, that is in a business-like way relatively soon after registration of strata plan. For this reason I adopt 4 November 2005 as the date on which it should be taken that the loss was incurred and interest should be calculated. The calculations are not contentious. 26 The primary judge went on to hold that, in circumstances where the Solicitor maintained at all times the position that the Purchaser was not entitled to a refund of the deposit, and until a late stage of the hearing that the contract for Unit 5 was enforceable, there should be a Bullock order made against the Solicitor in favour of the Vendors.

Issues on appeal 27 The Solicitor relies on the following grounds of appeal: 1. His Honour was in error in holding that the Appellant, acting reasonably ought to have known that the agreement for the sale of Unit 5 was ineffective and could not be enforced.

That His Honour was in error in attributing to the Appellant the knowledge that the Agreement for the Sale of Lot 5 was ineffective and could not be enforced.

His Honour erred in failing to hold that the Respondents had suffered no loss in respect of the failure of the Appellant to bring about an exchange of contracts in enforceable form.

His Honour was in error in holding that the Appellant owed a duty to advise the Respondents to enter into a contract with Ms Parkin for the sale of Unit 1 as soon as it was possible to do so.

His Honour erred in holding that the Appellant owed a duty to ensure that an enforceable agreement for the sale of Unit 1 came into existence as soon as possible after the Respondents and Ms Parkin made an arrangement about Unit 1.

That His Honour was in error in assessing the damages for breach of the second and third particulars of negligence (para [10] of the damages judgment) by reference to the sale price achieved for Unit 5.

That His Honour was in error in failing to hold that since there was no evidence about the sale price of Unit 1 the Respondents had failed to establish they had suffered any loss as a result of the breaches of the second and third particulars of negligence.

Alternatively to Grounds 6 and 7, that His Honour was in error in failing to assess the damages in respect of the breaches of the second and third particulars of negligence on a loss of chance basis.

His Honour was in error in failing to find that the Respondents would not have entered into a contract for the sale of Unit 1.

His Honour erred in failing to find that there was only a small chance that Ms Parkin (the purchaser) would have entered into a contract to purchase Unit 1.

His Honour erred in making a costs order against the Appellant in the nature of a Bullock order. 28 The Vendors put on a Notice of Contention, relying on the following ground: The respondents contend that, even if the appellant successfully makes out any of the grounds in his Notice of Appeal, the Orders should nevertheless be affirmed for the reasons set out in the judgment delivered by the Trial Judge on 7 March 2008, and in particular paragraph 45 of that judgment. 29 At the hearing of the appeal the Vendors sought and were granted leave to rely on a Second Notice of Contention relying on the following grounds: 1. The respondents contend that the judgment delivered by the Trial Judge on 11 August 2008 should be affirmed on the basis that the duties of care, which the Trial Judge found were owed by the appellant to the respondents, would have been owed and loss would have been caused even if, contrary to his finding in paragraph 13 of that judgment, knowledge could not be attributed to the appellant that the contract for the sale of unit 5 was ineffective and could not be enforced.

2. The respondents contend that, if the appellant successfully makes out Ground 7 of the Notice of Appeal, then: (i) the absence of evidence concerning the sale price of unit 1 was brought about as a result of lack of procedural fairness; and/or

(ii) to ensure procedural fairness, the respondents ought have leave to tender evidence of the sale price of unit 1 to this Court, or alternatively the matter should be remitted to the Trial Judge for the taking of such evidence, so as to determine the loss suffered by the respondents in relation to unit 1. 30 I will deal in turn with the following matters: (1) Whether any and if so what loss was caused by the Solicitor's breach concerning the proposed contract for Unit 5 (Ground 3 and original Notice of Contention). (2) Whether there was a breach by the Solicitor concerning the proposed contract for Unit 1 (Grounds 1, 2, 4 and 5, and Ground 1 of the Second Notice of Contention). (3) Whether any and if so what loss was caused by any breach concerning Unit 1 (Grounds 6-10 and Ground 2 of the Second Notice of Contention). (4) Costs (Ground 11).

Loss from breach concerning Unit 5? 31 The primary judge in his first judgment found that the Vendors were entitled to damages for the Solicitor's breach in respect of Unit 5, including the loss on resale. However, in his second judgment, he did not award damages on that basis: he saw difficulties arising from the circumstances referred to in par [24] above, so that any loss should be assessed as the loss of a chance; and he said the chance would not have had a favourable outcome. 32 It was contended for the Solicitor that, having regard to these difficulties, any chance lost should be assessed as no more than negligible, and no damages should be awarded for it. 33 It was submitted for the Vendors that the value of the lost chance of obtaining completion of a contract for the sale of Unit 5 for $585,000 was high, having regard to the following considerations: (1) But for the Solicitor's negligence, a valid contract would certainly have been made. (2) There was no suggestion the Purchaser did not have the resources to complete. (3) The Purchaser was keen to have a unit in the complex. (4) When she consulted another solicitor, the Purchaser made no reference to the alleged misrepresentation, and the matter was not raised in the proceedings until her affidavit in reply. (5) The contract precluded complaints about the dimensions of rooms. (6) It was not shown that the agent was authorised to make the representation complained about. (7) If the misrepresentation did result in the Vendors losing the bargain, the agent would be liable for this loss. (8) It was unlikely that the Vendors would have given a notice to complete and not been in a position to complete themselves, because they would not have been faced with a denial of the existence of the contract and thus would have made sure that they could complete if the Purchaser decided to go ahead. 34 I accept points (1) and (2). 35 However, in my view points (3) and (4) have little force: by the time the Purchaser consulted another solicitor, it is clear in my opinion that her overall preference was not to go ahead. In circumstances where the new solicitor saw fatal flaws in the contract itself, and soon learned of the non-identical counterparts, it is not surprising that the misrepresentation was not investigated and/or relied on at that stage. In my opinion, if there had been no problem with the form of the contract or its formation by exchange of counterparts, it is highly likely that the new solicitor would have explored the reasons for the proposed substitution of Unit 1, and would have been told of the agent's misrepresentation; and it is highly likely that it would have been relied on for the benefit of the Purchaser. 36 As regards (5), (6) and (7), the provisions of the contract could not prevent reliance on the Trade Practices Act 1974 (Cth) (or more accurately, in circumstances where the Vendors are natural persons, the Fair Trading Act 1987, ss 41, 42 and 45). In my opinion, the representation of an agent engaged by the Vendors to sell the Vendors' property would be attributed to the Vendors (cf Fair Trading Act s 70); and in circumstances where there was no evidence as to what the agent's instructions were, the chance of an alternative recovery against the agent cannot in my opinion be considered of high value. 37 As regards (8), in my opinion it cannot be assumed, as the primary judge may have done, that in different circumstances where the Purchaser was not alleging there was no contract, the Vendors' solicitors would have given a notice to complete as they did, while the Vendors would not have been in a position to complete in accordance with it. However, this is what actually happened, and the value of the lost chance is affected by a significant possibility that it would have happened in the different circumstances that would have then obtained if, as seems likely, the Purchaser resisted completion relying on the Fair Trading Act. 38 It is not possible to calculate the value of the chance with any accuracy. Doing the best I can, I would assess it at thirty per cent. As this figure reflects a broad assessment of the value of the Vendors' loss of a chance, I do not think it is necessary to make any adjustment for the small amount the Vendors would have had to expend on alterations to Unit 5 in accordance with additional cl 50 of the contract. Thus, if greater damages are not recoverable on the basis of a breach concerning Unit 1, I would reduce the damages awarded by seventy per cent. I note that damages for loss of bargains in respect of Unit 5 and Unit 1 cannot be added up: the Vendors cannot have the benefit of both bargains which they allege they lost.

Breach concerning Unit 1? 39 The decision of the primary judge that the Solicitor breached his duty in relation to Unit 1 turned on his holding in par [13] of the second judgment that, if the Solicitor had been acting reasonably, he would have known there was no agreement for the sale of Unit 5, and such understanding should be attributed to him. It was on that basis that the primary judge found to the effect that it was the Solicitor's duty to the Vendors to point out how much depended on coming to an agreement on Unit 1 and doing so expeditiously. 40 As submitted for the Solicitor on appeal, it is plain that the Solicitor did not in fact know there was no effective agreement for the sale of Unit 5; and on and from about February 2005, when the Solicitor was first told about the proposal to substitute Unit 1, there was in my opinion no ongoing breach of duty by the Solicitor in not knowing this: see Larking v Great Western (Nepean) Gravel Limited [1940] HCA 37; (1940) 64 CLR 221 at 236; Hammond v Minister for Works (1992) 8 WAR 505 at 516; and Winnote Pty Limited v Page [2006] NSWCA 287; (2006) 68 NSWLR 531. In my opinion, a breach arising from inadvertent failure to ensure exchanged counterpart contracts are identical is not ongoing, in the way that, for example, a breach arising from failure to institute legal proceedings as instructed is ongoing: cf Winnote at [360] per Basten JA (who dissented in that case on the question of when damage was suffered). 41 There is a further problem in finding a breach on that basis: the Solicitor, acting for both parties, would have had to act even-handedly. Certainly, he could not have advised the Vendors that there was no contract for Unit 5 without also advising the Purchaser of this. Certainly, in my opinion, the Solicitor could not, without fully informed consent of the Purchaser, have advised the Vendors that they needed expeditiously to come to an agreement on Unit 1. 42 It was submitted for the Vendors that, accepting that the actions and advice of the Solicitor were properly to be assessed on the basis that the Solicitor did not know there was no contract for Unit 5, the delay by the Solicitor in preparing the deed of rescission and the contract for Unit 1, and his failure, in circumstances where Unit 1 was being altered to suit the Purchaser's needs, to advise the Vendors that they should finalise the contract (indeed, according to Mr Pagliuca, advising that this could await settlement), amounted to a breach of duty. 43 However, the primary judge made no findings of fact that would support a finding of breach on that basis. The Solicitor's evidence was to the effect that the agreement for Unit 1 was not finalised because the parties were in dispute as to who should pay certain expenses, and that was indeed the fact. It is clear that the documents for Unit 1 were prepared in July 2005, and it was not established precisely when instructions sufficient to enable that preparation were given. Although Mr Pagliuca's evidence was that he did not get the documents until September 2005, this was not explicitly accepted by the primary judge; and it is clear that the documents were available in July 2005 and were given to the Purchaser in July 2005, and that Mr Pagliuca was seeing the Solicitor quite frequently. 44 The primary judge did not find a breach of duty by the Solicitor on this basis, and I would not do so.

Loss from beach concerning Unit 1? 45 Even if there had been a breach by the Solicitor not proceeding expeditiously to prepare documents for Unit 1, and in not advising the Vendors that they should finalise a contract for Unit 1, the primary judge's finding of causation of loss in this respect depends on his view that the Solicitor should have advised the Vendors that they needed a contract for Unit 1 because there was no contract for Unit 5; and that with that advice, the Vendors would have capitulated on the question of expenses. 46 However, as stated above, any breach concerning Unit 1 should be considered on the basis that the Solicitor did not know there was no contract and so could not have advised the Vendors there was no contract. In those circumstances, there is no sound basis for concluding that the Vendors would have capitulated on the question of expenses, if the Solicitor had acted more expeditiously in the preparation of documents and advised the Vendors that they should finalise this contract. 47 Even if this Court were to find that there was a breach by the Solicitor in this respect, and there would have been a contract for Unit 1 but for the breach, there is another difficulty with the primary judge's finding of loss. There was no evidence for loss of a bargain in respect of Unit 1. It was put on appeal for the Vendors that evidence of re-sale of Unit 1 was not led because the primary judge's first judgment focussed on the loss of the bargain on Unit 5. However, that submission faced the difficulties that, for the hearing on damages, submissions were made concerning the loss of the bargain on Unit 1, and also that no evidence was sought to be led on appeal as to what evidence would have been led below if the Vendors had not focussed on Unit 5. 48 During the hearing of the appeal, after the lunch adjournment, the Vendors tendered a Transfer of Unit 1 for $500,000; and because there was no objection on the part of the Solicitor, this was admitted into evidence on the appeal. At best for the Vendors, this could possibly have justified a new trial on damages, with the starting point being a loss of bargain of $85,000, rather than the $185,000 adopted by the primary judge. 49 However, clearly in my opinion there should not be such a new trial, because of the reasons given earlier in relation to the findings of breach and causation of loss in respect to Unit 1.

Costs 50 It was submitted for the Solicitor that the primary judge should not have made an order that the Solicitor reimburse the Vendors for the costs they were ordered to pay the Purchaser. 51 The Vendors' cross-claims against the Purchaser and against the Solicitor were filed on the same day, 22 June 2006; and it was reasonable in my opinion for the Vendors to bring the two cross-claims. This of course is not sufficient to justify a Bullock order; and if the Solicitor had within a reasonable time conceded that there was no contract in respect of Unit 5, it is clear in my opinion that no Bullock order should have been made. In those circumstances, for the Vendors to continue to resist the Purchaser's claim and to pursue their cross-claim against the Purchaser would have been entirely at the Vendors' own risk as to costs. 52 However, the Solicitor did not make this concession, but rather maintained at all times that the Purchaser was not entitled to a refund of deposit, and until a late stage of the hearing maintained there was an enforceable contract for Unit 5. In my opinion, that conduct by the Solicitor did contribute to the Vendors incurring the costs they were ordered to pay the Purchaser, in such a way as to make a Bullock order an available option within the costs discretion of the primary judge.

Conclusion 53 For those reasons, in my opinion there should be no damages in respect of Unit 1. In respect of Unit 5, there should be damages amounting to thirty per cent of the damages actually awarded by the primary judge. The appeal in relation to the Bullock order on costs should be dismissed. Although the appeal has not been completely successful, the appeal has had substantial success, and in my opinion there are no significant severable costs; and for that reason, in my opinion, the Solicitor's success on the appeal is sufficient to justify an order that the Vendors pay the costs of the appeal. 54 Accordingly, I propose the following orders: (1) Appeal allowed in part. (2) Orders 2 and 3 made on 11 August 2008 set aside, and in lieu thereof judgment for the Vendors against the Solicitor in an amount of $55,500, and the Vendors are awarded interest calculated from 4 November 2005 to 31 July 2007 in the amount of $23,844, such orders to take effect as at 11 August 2008. (3) Vendors to pay the Solicitor's costs of the appeal, and to have a certificate under the Suitors' Fund Act 1951 if otherwise eligible. 55 IPP JA: I agree with Hodgson JA. 56 SACKVILLE AJA: I agree with the orders proposed by Hodgson JA and with his Honour's reasons. However, I wish to add the following comments on the Vendors' loss of chance case in relation to Unit 5. In doing so, I adopt the abbreviations used by Hodgson JA in his judgment. 57 A difficulty arose in the present case because the Vendors apparently conducted the Second Cross-Claim at the first hearing on the basis that, if they succeeded in establishing a breach of duty by the Solicitor in relation to the preparation of the contract of sale for Unit 5, they would be entitled to damages for loss of their bargain. The assumption seems to have been that the damages for breach of duty would include the difference between the contract price for Unit 5 ($585,000) and the price ultimately realised by the Vendors ($400,000), that is a total of $185,000. The approach taken by the Vendors at the hearing would seem to explain his Honour's statement in the first judgment (at [45]) that he proposed to give judgment for the Vendors against the Solicitor "for damages with respect [to] the loss of bargain" and for any other damages that the Vendors could establish. 58 It is not entirely clear when the Vendors' claim for damages in respect of the Solicitor's negligence was first characterised by one or both of the parties as the loss of the commercial opportunity to enforce the contract for the sale of Unit 5 against the Purchaser, although some reference to a loss of chance was made during final submissions at the first hearing. In any event, his Honour was not invited at the first hearing to make specific findings of fact that would enable an assessment to be made of the value of the Vendors' lost opportunity. Neither party sought to adduce further evidence as to the value of the lost opportunity at the second hearing. 59 In the second judgment, the primary Judge described (at [9]) the Vendors' claim for damages by reason of the Solicitor's negligence in failing to ensure that the counterpart contracts of sale for Unit 5 were identical, as "probably … a claim for loss of chance to obtain completion by [the Purchaser] of the contract". However, he rejected the claim because "supervening events" showed that the Vendors had lost any entitlement to enforce the contract when they issued a notice to complete to the Purchaser without themselves being in a position to complete the contract. His Honour appears to have taken the view that the Vendors' chances of securing completion of the contract of sale were virtually nil and thus had no significant commercial value. 60 The difficulty with this analysis is that, in order to assess the value of the Vendors' loss of commercial opportunity, it is necessary to determine what would or might have occurred had the Solicitor not been negligent. On this hypothesis (the counter-factual), it must be assumed that the Solicitor ensured that the counterpart contracts for the sale of Unit 5 were identical and that the parties therefore entered into a valid contract for the sale of Unit 5. Had this occurred, it is by no means inevitable that the Vendors would have issued a notice to complete in circumstances where they were not entitled to do so. The Vendors apparently issued the notice to complete as a response to the Purchaser's assertion that she was not bound by any contract to purchase Unit 5 because the counterparts were not identical. If the contract had been valid in its inception, the Purchaser presumably would not have made the same assertion and the Vendors would not have had occasion to issue a notice to complete for this reason. Even if the Vendors did issue such a notice, they might have taken greater care to comply with their obligations under cl 50 of the contract (which required them to carry out certain works on Unit 5 prior to completion of the contract). 61 The prospect that the Vendors might have acted in precisely the same way in the counter-factual world, by issuing a notice to complete in circumstances where they were not entitled to do so, must be taken into account in determining whether the loss of commercial opportunity was of some value and, if so, in making an estimate of the value of that lost opportunity. The Vendors may have done so, for example, as an inappropriate response to a notice from the Purchaser purporting to rescind the contract for the sale of Unit 5 on the ground of the agent's misrepresentation. On the evidence before the primary Judge, however, there was no basis for concluding that, in the counter-factual world, there was virtually 100 per cent chance that the Vendors would have issued a notice to complete to the Purchaser in circumstances where they were not entitled to do so. 62 Assessing the value of the Vendors' loss of commercial opportunity presents difficulties because of the limited evidence directed to the question. Hodgson JA has listed the matters that must be taken into account, including the possibility that the Vendors may have issued an invalid notice to complete to the Purchaser, thereby entitling her to terminate the contract. 63 I agree with Hodgson JA that it was very probable that the Purchaser, even if no other ground were available, would have sought to avoid the contract of sale on the ground that the Vendors' agent had misrepresented the dimensions of the bedroom in the unit prior to the Purchaser signing the contract of sale. As his Honour found, not only did the agent make the misrepresentation, but the Purchaser was dissatisfied with the size of the bedroom in Unit 5 as constructed. Moreover, by the time the building was completed, the Purchaser believed, correctly, that the value of Unit 5 was considerably less than the price she had agreed to pay. She therefore had a substantial incentive to rely upon any grounds available to her to avoid the contract of sale. 64 The primary Judge did not find it necessary to examine in detail the nature of the relief available to the Purchaser by reason of the agent's misrepresentation. On his Honour's findings, however, there would seem to be a very strong basis for a claim by the Purchaser against the Vendors based on misleading or deceptive conduct in contravention of s 42(1) of the Fair Trading Act 1987 (NSW) ("FT Act") or on a false or misleading representation concerning the characteristics of land in contravention of s 45(1)(b) of the FT Act. 65 There is little doubt that the Vendors were engaged in trade or commerce for the purposes of s 42(1) and s 45(1)(b) of the FT Act. In the counter-factual world, in order to sheet home the agent's misrepresentation to the Vendors, the Purchaser would be able to invoke s 70(4) of the FT Act, which provides, among other things, that conduct engaged in on behalf of a person by an agent within the scope of the actual or apparent authority of the agent is deemed to have been engaged in also by the first-mentioned person. (There was no evidence in the present case to suggest that the agent was acting outside his actual or apparent authority.) The relief available to the Purchaser, assuming she could make out a contravention of s 42(1) or s 45(1)(b) of the FT Act, and that she could establish that she was likely to sustain loss or damage, would include an order declaring the contract of sale for Unit 5 void: ss 72(1), 72(5)(a). 66 The Vendors submitted that, in assessing the value of their lost commercial opportunity, the Court should take into account the chance that, in the counter-factual world, they would have been able to claim damages against the agent by reason of his misrepresentation. However, no evidence was adduced in the present case to suggest that the agent was doing anything other than conveying information provided to him by the Vendors or was otherwise acting in contravention of their instructions: cf Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592. 67 In the circumstances, I agree with Hodgson JA that a fair assessment of the value of the Vendors' lost commercial opportunity to secure completion of the contract of sale of Unit 5 is 30 per cent of the difference between the contract price and the actual sale price of Unit 5. **********

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