Williamson v Elders Rural Services Australia Limited

Supreme Court of NSW|2017-11-29|Before: Johnson J

Judgment

JOHNSON J: By a Third Further Amended Statement of Claim filed 2 June 2017, the Plaintiff, Hugh Francis Arthur Williamson, sues the Defendant, Elders Rural Services Australia Limited, alleging fraudulent representation by an employee of the Defendant, which is said to have caused loss and damage to the Plaintiff calling for an award of damages in excess of $5 million.

The Plaintiff's Claim and the Defendant's Response

As will be seen, it will be necessary, in due course, to examine closely the Plaintiff's pleaded claim against the Defendant.
Put shortly, the Plaintiff alleges that a fraudulent representation was made by an employee of the Defendant, Leslie Joseph Hannan, in relation to the sale to the Plaintiff of a property known as "Reevesdale" at Bungonia. Bungonia is a small town in the Southern Tablelands of New South Wales. The sale of "Reevesdale" occurred in July 2007 when the Defendant (then known as Elders Limited) was joint agent for the sale of that property. Mr Hannan, who is now deceased, was a licensed real estate agent and an employee of the Defendant, who accompanied the Plaintiff on an inspection of "Reevesdale" in April 2007.

Hearing of the Proceedings

The hearing of the Plaintiff's claim proceeded on 27-29 November 2017. The Plaintiff (who is legally qualified and has practised in the past as a solicitor) appeared for himself. Mr DA Robertson of counsel appeared for the Defendant. Evidence and Submissions
The Plaintiff relied upon his own affidavits dated 10 October 2016, 14 June 2017, 14 August 2017 and 20 November 2017. In addition, the Plaintiff gave oral evidence, which included extensive cross-examination (T25-122).
The Plaintiff called Diana Cathryn Moran in his case. An affidavit of Ms Moran sworn on an unspecified day in September 2016 (and filed on 10 October 2016) was read and Ms Moran gave evidence and was cross-examined (T123-136).
The Plaintiff called as a witness his former wife, Lucinda Josephine Williamson. Ms Williamson swore an affidavit dated 22 November 2017 and gave oral evidence including cross-examination (T137-142).
The Plaintiff called Stephen Fitzsimons, accountant, to give evidence in his case. An affidavit of Mr Fitzsimons sworn 15 June 2017 was read together with a volume of accompanying documents (Exhibit A to the affidavit of Mr Fitzsimons). Mr Fitzsimons gave oral evidence and was cross-examined (T145-159).
The Plaintiff relied upon the affidavit of Nicholas Carlton Farrow sworn 23 August 2017. In light of a ruling made concerning an objection to part of Mr Farrow's affidavit (T9-10), Mr Farrow was not required for cross-examination.
As will be seen, the Plaintiff commenced earlier and separate proceedings on a related subject matter to the present claim against his former solicitors, Carneys Lawyers Pty Limited ("Carneys"). Those proceedings were heard and determined by Adamson J in 2015, with judgment being given against the Plaintiff and in favour of Carneys: Williamson v Carneys Lawyers [2015] NSWSC 1080; Williamson v Carneys Lawyers (No. 2) [2015] NSWSC 1175.
Mr Hannan affirmed two affidavits (on 21 April 2015 and 25 June 2015) for the purpose of the Plaintiff's proceedings against Carneys. Mr Hannan passed away on 3 July 2015 (Exhibit G), some three weeks prior to the commencement, on 27 July 2015, of the hearing before Adamson J of the Plaintiff's claim against Carneys.
The Plaintiff annexed Mr Hannan's affidavit of 21 April 2015 to his own affidavit of 14 August 2017. The Plaintiff relied upon Mr Hannan's affidavit in his case (T3, 8-9) and responded to Mr Hannan's affidavit in his own affidavit.
The Defendant relied on the affidavits of Mr Hannan dated 21 April 2015 and 25 June 2015, having given notice dated 28 July 2017 to the Plaintiff for the purpose of ss.63(2)(b) and 67 Evidence Act 1995. Clearly, Mr Hannan was not available to give evidence as he was deceased: Clause 4(1)(a), Part 2, Dictionary, Evidence Act 1995.
The Defendant called Moira Hannah McGinity to give evidence in the Defendant's case. Ms McGinity swore two affidavits dated 12 September 2017 and she gave oral evidence and was cross-examined (T160-162).
The Defendant called Peter James Reardon, registered valuer, who had sworn an affidavit dated 2 December 2014 in the proceedings heard and determined by Adamson J in 2015. Although having required Mr Reardon for cross-examination, the Plaintiff informed the Court that he did not wish to cross-examine him (T163-164).
At the conclusion of the evidence and before closing submissions, the Plaintiff made an application to amend the Third Further Amended Statement of Claim to make a claim for exemplary damages (T164-167). The application was refused: Williamson v Elders Rural Services Australia Limited (No. 1) [2017] NSWSC 1644.
Written submissions were relied upon by the Plaintiff (MFIs 6 and 7) and counsel for the Defendant (MFI9). In addition, Mr Robertson furnished the Court with a helpful chronology (MFI8). Oral submissions were made by the Plaintiff and counsel for the Defendant (T169-207). Earlier Interlocutory Rulings
It is appropriate to refer to earlier interlocutory applications in the present proceedings which were determined by other Judges in the Common Law Division.
On 22 April 2016, N Adams J refused the Plaintiff leave to file a proposed amended pleading, but granted him leave to file an Amended Statement of Claim by 3 June 2016: Williamson v Elders Limited and Ors [2016] NSWSC 450. Her Honour accepted that the Plaintiff's action in fraud accrued on the day on which he acquired an interest in "Reevesdale" by the exchange of contracts in relation to that property, namely 24 July 2007. Her Honour said at [45]-[48]: "45 As a result of my finding that the plaintiff's actions in both fraud and misleading or deceptive conduct accrued on the day on which he acquired an interest in Reevesdale, the application of both s 82(2) of the TPA and s 14(1)(b) of the Limitation Act 1969 mean that both of the plaintiff's causes of action are statute barred. I turn then to the question of whether the plaintiff's asserted disability arising from his brain abscess has any impact on the running of time for the purposes of the relevant limitation periods. 46 The plaintiff places reliance upon s 52 of the Limitation Act 1969 in this regard, but s 7 of the Limitation Act 1969 relevantly provides that nothing in that Act applies to an action for which a limitation period is fixed by or under an enactment other than that Act. This includes s 82 of the TPA. There is no analogous provision for the suspension of a limitation period for claims for damages arising under the TPA. This means that the plaintiff's asserted disability cannot extend the time period specified in s 82(2) of the TPA and the plaintiff is statute barred from claiming damages under the TPA. 47 It is possible that the plaintiff may be able to rely upon s 52 of the Limitation Act 1969 in relation to his action for fraud so as to extend the six year time limit set by s 14 (1)(b) of the Limitation Act 1969. There is simply no material before me to make any finding on that issue. 48 Accordingly, I would not propose to grant the plaintiff leave to file his amended statement of claim insofar as it pleads a cause of action under the TPA."
The effect of this ruling was that the determination of the limitation issue concerning the common law claim in fraud, under s.14(1)(b) Limitation Act 1969, was left to be determined at the hearing which proceeded before me.
On 19 October 2016, Beech-Jones J dismissed a Notice of Motion, filed by the Plaintiff, which raised a number of issues, including the identity of the Defendant: Williamson v Elders [2016] NSWSC 1505. In the course of the judgment, Beech-Jones J said at [12]-[15]: "12 I will address this by conditioning any grant of leave to Mr Williamson, so that any pleading he is allowed to file cannot include Elders Limited as a defendant. To further confirm the position, I will grant prayer 2 in Elders Limited's notice of motion which will effect a striking out of the claim against it in the existing second further amended statement of claim. This will avoid the circumstance that it might somehow linger on as a defendant while some further disputation about a revised pleading occurs. 13 In relation to the position of Elders Rural, it seems very likely that the circumstances concerning its change of name bring the matter within s 65(2)(b) of the Civil Procedure Act. Nevertheless, as that matter was not fully debated, I will stand over to the trial the question as to whether the Court should otherwise order under s 65(3). Instead, as some of the various amendments are not opposed, I will grant Mr Williamson leave under s 64(1)(b) to bring in a third further amended statement of claim which names Elders Rural as the sole defendant. As stated, the question as to when those amendments will have effect will be stood over to the trial. This deals with the first category of proposed amendments. 14 The second category of proposed amendments is not opposed. The third and fourth categories are opposed. 15 At present, the second further amended statement of claim pleads a claim of fraudulent representation by Mr Hannan, the agent of Elders Rural, in relation to the sale of Reevesdale. The broad effect of the pleading is that Mr Hannan misled Mr Williamson as to the reasons why the vendors were selling Reevesdale and that he was otherwise obliged, but deliberately failed, to tell him, that is, Mr Williamson, of an intended quarry development on the adjacent land."
Accordingly, as a result of the rulings of N Adams J and Beech-Jones J, the Plaintiff proceeded solely on a common law claim of fraudulent representation against the Defendant only.
Against the background of these references to the witnesses and earlier interlocutory rulings, I now move to a recital of the factual background, including findings of fact in areas of controversy.

Factual Findings

The following factual narrative is drawn from the oral and documentary evidence.
Given the passage of time since the hearing, I have reread the transcript of the hearing and considered notes and summaries prepared by me at the time of the hearing to assist in the preparation of this judgment.
As will be seen, much of the chronological narrative is not disputed, with particular controversy arising in a number of limited areas. The Plaintiff
The Plaintiff, who was 57 years old at the time of the hearing, gave evidence that he had qualified as a legal practitioner in England before coming to Australia in 1990, where he practised as a solicitor with different firms (T37). From 2006, the Plaintiff conducted a sole corporate litigation practice until 2010, when he suffered significant health issues which led to him ceasing practice (T37-38). The Plaintiff had some experience of conveyancing during his time in practice as a solicitor in New South Wales (T38). The Quarry Development Proposal at "Ardmore Park"
On 10 January 2005, CEAL Limited ("CEAL"), trading as Multiquip Quarries, lodged a development application for the construction and use of part of the land of "Ardmore Park" near Bungonia as a quarry.
On or about 2 August 2005, the New South Wales Minister for Infrastructure and Planning ("the Minister") refused CEAL's proposal.
On 29 March 2006, CEAL appealed to the Land and Environment Court against the Minister's decision refusing the development application in respect of the quarry at "Ardmore Park".
From about April 2006, persons associated with the Bungonia Progress Association were concerned over the prospect of a quarry being developed in the Bungonia area. During this time, Ms McGinity was the treasurer of the Bungonia Progress Association. It was her evidence (which I accept) that from 2005 to July 2007, protest banners were tied to fences and trees near Bungonia, with the banners having large handwriting so as to be legible from the road. The banners contained various protest messages, including "Country Road Not Truck Route" and "School Bus Safety".
It was the evidence of Ms McGinity that the various banners around Bungonia were not taken down until CEAL's appeal was dismissed by the Land and Environment Court in about July 2007.
On 7 July 2007, after the appeal was dismissed, Ms McGinity stated that the local community held a "Banners Away" party to celebrate the result of the appeal, with members of the local community then taking down the protest banners. The affidavits of Ms McGinity testify to these events, and include photographs of protest banners which had been in place in King Street, Bungonia (which is, in effect, a continuation of Mountain Ash Road) (T171).
Ms McGinity's evidence is corroborated by the July 2007 edition of "The Bungonia Times" (Exhibit L), which contained an article informing the local community that the appeal by CEAL had been dismissed and stating that a "Banners Away" party was to be held at Bungonia Hall on 7 July 2007.
It was the evidence of Ms McGinity (which I accept) that the banners which were put up in 2005 were never taken down until July 2007, and that the banners were still on public display as at 10 April 2007 (T161-162). The significance of 10 April 2007 will become apparent shortly.
To the extent that the evidence of Ms Moran differs from that of Ms McGinity, I am satisfied that the evidence of Ms McGinity is more reliable. I am satisfied that protest banners were in place consistently from 2005 until July 2007, with the evidence of Ms McGinity being corroborated by photographic evidence and the article in the July 2007 edition of the local community newspaper (Exhibit L). The Defendant and Mr Hannan as Joint Agents for the Sale of "Reevesdale"
As at April 2007, the Defendant was joint agent for the sale of "Reevesdale" and Mr Hannan was a licensed real estate agent employed by the Defendant. Although Mr Hannan is deceased, his affidavits of 21 April 2015 and 25 June 2015 form part of the evidence before the Court in these proceedings. The hearsay rule does not apply to evidence contained in Mr Hannan's affidavits of representations about asserted facts in the affidavits: s.63 Evidence Act 1995. The additional restrictions concerning an unavailable witness which apply in criminal proceedings under s.66 Evidence Act 1995 do not operate under s.63 of that Act in civil proceedings.
Mr Hannan's affidavit of 21 April 2015 explains his involvement with the sale of "Reevesdale" and how he came to meet the Plaintiff in that context.
Mr Hannan became aware that "Reevesdale" had been on the market, and had gone to auction unsuccessfully. Mr Hannan described factors which made it difficult to sell "Reevesdale", which included (affidavit, Mr Hannan, 21 April 2015, paragraph 3): 1. the (previous) asking price was too high; 2. the buildings on the property dated back to the 1800s and required costly upkeep; 3. local residents, when looking to buy properties to live in, normally desired properties with newer homes on them; 4. most working farms in the area occupied a couple of thousand acres (whereas "Reevesdale" was only about 250 acres); 5. the property was not large enough to conduct a commercially self-sustaining farming business; and 6. "Reevesdale" was more suitable to operate as an affluent person's weekend house, rather than as a working farm.
Mr Hannan worked from the Goulburn office of the Defendant in 2007. He described the route he would take when visiting "Reevesdale", driving through Bungonia, which had a population of about 20 persons and no petrol station or shop. According to Mr Hannan, there was only one ordinary way to get to "Reevesdale", which was via Mountain Ash Road which runs through Bungonia.
During the time that he was visiting Bungonia in 2006 and 2007, Mr Hannan noted that there were various placards tied to fences and trees, mostly handwritten notices on weatherproof cardboard in the area of Bungonia and along Mountain Ash Road. He said that the signs were large enough to be legible from the road with some of the placards saying words to the effect of "Stop the Quarry", "No Quarry" and "No Trucks Through Bungonia". Mr Hannan's account is corroborated in this respect by the evidence of Ms McGinity (see [34]-[38] above). The Plaintiff Visits "Reevesdale" on 10 April 2007
Mr Hannan described how he was introduced to the Plaintiff by way of a telephone call from Bill Bridges, a real estate agent at Cassim Real Estate. The Plaintiff contacted Mr Hannan and the Plaintiff and Mr Hannan drove their respective vehicles in convoy to "Reevesdale". The Plaintiff said that this visit occurred on 10 April 2007 and I accept his evidence concerning that date. There is evidence that the Plaintiff was accompanied by his then wife, Lucinda Williamson.
At this point, it is appropriate to set out the Plaintiff's pleaded claim arising from his contact with Mr Hannan. As will be seen, the Defendant made submissions which contrasted the Plaintiff's pleaded claim with the evidence led by the Plaintiff in support of that claim.
In the Third Further Amended Statement of Claim, the Plaintiff identified the alleged false representation by reference to a conversation said to have occurred during the inspection of "Reevesdale" in April 2007. In what follows, the reference to Mr and Mrs Cooper should be understood as a reference to the former owners of "Reevesdale" who, through their company, sold the property to the Plaintiff. Paragraphs 21-26 of the Third Further Amended Statement of Claim, filed on 2 June 2017, stated: "21 During the tour of the garden Hannan showed the plaintiff the layout and commented that Mrs Cooper was a very good gardener and she maintained this garden and added to it. 22. The plaintiff then asked why, if she is such a good and enthusiastic gardener, she allowed them to sell up. 23. Hannan responded by saying that it was far more her than him (referring to Mr Cooper) that wished to sell and that this was because she believed she had seen ghosts at Reevesdale after which she had left and said she would not come back. [This was the sole reason given by Hannan in response to the express enquiry from the plaintiff as to the reasons behind the sale.] 24. At no stage subsequently did Hannan say anything else that was material before exchange of contracts and settlement (which both occurred on 24 July 2007) by way of explanation or qualification of the reason given to the plaintiff for the Vendor's decision to sell Reevesdale. At the time of contracts and settlement the plaintiff was wholly unaware of the intended quarry development on the adjacent land at Ardmore Park. 25. In particular it is averred that at the time of Hannan making the statement at paragraph 23 and 24 above, Hannan knew that:- 25.1 CEAL had plans to develop Ardmore Park; 25.2 the proposal had been submitted, refused by the Minister and was currently on appeal; 25.3 the reason that the Vendor was selling was because of the threat posed to Reevesdale by the potential development of Ardmore Park. 26. Accordingly it is averred that when Hannan made the statement at paragraph 23 and 24 above he knew it to be false and knew and intended that it would be relied upon by the plaintiff. It is further averred that the defendant was both vicariously liable for the acts, omissions and representations of its employee in relation to the sale of Reevesdale to the plaintiff and also actually liable and in particular for the false statement ('the fraudulent representation') made to the plaintiff as to the reasons for the sale."
Paragraph 30 of the Third Further Amended Statement of Claim states: "It is averred that in reliance on the fraudulent representation made by Hannan as to the reason for the Vendor's decision to sell being that Mrs Cooper believed there to be ghosts at Reevesdale and in reliance on the omission to correct that representation at a time when Hannan knew it to be false the plaintiff: 1. Did not make further enquiry concerning the reasons that the Vendor was seeking to sell Reevesdale. 2. Entered into an agreement with the vendor to purchase Reevesdale. PARTICULARS The agreement was express and in writing and dated 24 July 2007. A copy is available for inspection by appointment with the plaintiff."
The Plaintiff pleads his alleged loss and damage at paragraph 39 of the Third Amended Statement of Claim, which provides: "By reason of the conduct of the defendant (in that the defendant is liable for the acts of Hannan in saying that there were ghosts on the property but by not telling the plaintiff the real reason why the Vendor was leaving, namely the future development of Ardmore Park as a quarry) the plaintiff has suffered loss and damage. The loss and damage has been calculated by Stephen Fitzsimmons of Hill Rogers, accountants: Particulars a. Reevesdale-Loss on Sale $1,052,552 b. [X] Cascade Street- Loss between May 2007 and sale on 1 September 2009 $881,679 c. Loan establishment fees $17,729 d. Operating Losses $101,382 e. Interest expense $1,506,057 f. Forfeited interest income $739,034 g. Rabobank Principal $805,288 TOTAL $5,103,720"
Given its significance to the issues in these proceedings, I set out hereunder Mr Hannan's account of the Plaintiff's visit. According to Mr Hannan, the following occurred (affidavit, Mr Hannan, 21 April 2015, paragraphs 8-15): "8 Some time in early 2007, I received a telephone call from a man whom I knew to be Bill Bridges, a real estate agent at Cassim Real Estate. He said to me words to the following effect: 'I have a client, Hugh Williamson, who is looking for properties in the area. I think Reevesdale might be suitable. Please call him to arrange an inspection.' 9 After that conversation, I called the number Mr Bridges had given to me and spoke to Hugh Williamson. We had a conversation, during which he said words to the following effect: 'Bill Bridges told me about Reevesdale. I am a lawyer in Sydney. I have been looking In the area to buy a property.' 10 Mr Williamson and I arranged to meet in Bungonia and drove in convoy to Reevesdale. We conducted an inspection of the property and of the buildings. During the visit, Mr Williamson said to me words to the following effect: 'How many cattle or sheep can be run on this?' 'What sort of water rights does the property have?' 11 During the visit, we had a conversation, part of which was in words to the following effect: HW: 'What are all those placards about that you see on the road here? What's the quarry?' Me: 'I don't know much about it. I'll make some inquiries.' 12 After the visit, I stopped at a house in Mountain Ash Road that had a placard on the front of it. I knocked on the door and had a conversation with the man who answered the door, which included words to the following effect: Me: 'I am a local real estate agent. What are all these placards about?' Unidentified man: 'We are protesting against a quarry that they want to build on Oallen Ford Road. They say there will be about twenty trucks per day through Bungonia. As you can see, it's a lightweight country road and it's not designed for that sort of traffic, it will cause structural damage to the local heritage buildings, like the meeting hall and the church. They will need to do a lot of construction work upgrading the road over a long period, let alone all of the noise and dust and digging that a quarry will bring. I'm an organiser of the action group. There are legal proceedings over the development application.' 13 After that, I had a conversation with Bill Bridges. 14 I subsequently telephoned Mr Williamson. During our conversation, words were spoken to the following effect: Me: 'I have spoken to a man in Bungonia about the placards you asked about. He told me that there is a proposed quarry on the Oallen Ford Road. He says that it would have an effect on Bungonia and the area. There would be construction and trucks and all that stuff. He told me that they are going through court at the moment. I have his contact details if you would like them.' 15 HW: 'Thanks for that. I'll make some enquiries'."
In Mr Hannan's later affidavit of 25 June 2015, he made some small additions to paragraphs 14 and 15 of his affidavit of 21 April 2015. Mr Hannan said (affidavit, Mr Hannan, 25 June 2015, paragraphs 2-3): "2 I refer to paragraph 14 of the Affidavit. I recall that when I said to Mr Williamson: 'He told me that they are going through court at the moment' that I specifically referred to the 'Land & Environment Court'. 3 I refer to paragraph 15 of the Affidavit. I recall that Mr Williamson said 'I know where that is. I'll make some enquiries."
The Plaintiff strongly denies that these conversations took place (T44-45). He states that Mr Hannan told him nothing about the quarry development application with respect to "Ardmore Park". The Plaintiff states, as well, that he saw no protest banners on his journey or journeys to "Reevesdale" prior to the simultaneous exchange of contracts and settlement on the sale of the property which took place on 24 July 2007 (T44).
The Plaintiff's evidence on this aspect appears at paragraphs 8-12 of his affidavit sworn 10 October 2016, where he said: "8 At the house we took a tour through the garden. We started at the rear of the house where there are no windows. That was laid to grass. It turns around the glass pavilion which is an extension of the sitting room. There are fruit trees there. Then, as we walked around the house to the front of it, the garden turns into grass and beds, which support some plants. Les Hannan said: 'Mrs Cooper has a tremendous touch and a green finger. You can see that the garden has been very well cared for.' 9 I said: 'It's surprising that they left. They clearly put a lot of effort in here.' 10 Les Hannan said: 'She saw a ghost. She wasn't going to stay after that. It is a lot more her than him.' 11 I said nothing to him in response to this but understood that this was the reason why the property was on the market. 12 The tour then ended and we went back to Goderich Street in Mr Hannan's car. I said goodbye to Mr Hannan and we got into our car. We again followed Mr Hannan until we turned off into Jerrara Road which leads to the Hume Highway and there you turn right and go back to Sydney. Mr Hannan carried on down Mountain Ash Road towards Goulburn."
Lucinda Williamson gave a different version of this visit. In her affidavit sworn 22 November 2017, Ms Williamson said at paragraphs 6-7: "6 During this property visit I recall observing the neighbouring property and the conversation with Hugh and Les Hannon [sic] not expanding beyond about how good the country looked to run cattle. 7 There was no suggestion from any signage or conversation that there would be or had been an application to develop a quarry in neighbouring paddocks from what I observed during our visit to Bungonia township and the property, Reevesdale."
Under cross-examination, Ms Williamson was asked (T138-139): "Q. During this visit that you made with Mr Hannan during the end of the financial year 2007 as you say, you looked at the things around the property that interested you? A. Mm hmm. Q. You weren't always listening closely to discussions between your husband and Mr Hannan? A. We're in the same vehicle I believe. There were a point in time where we may have been on foot in sections. Q. Yes, so while you were inspecting on foot you were not always listening closely to discussions between Mr Hannan and your husband? A. Well, I would have thought I was within earshot, around the house when I trust we would have been walking. I remember being in his vehicle driving through the paddocks. I would have imagined I would have heard most all of the conversation. Q. The point of what I'm putting to you is suggesting to you is that there may have been things said between your husband and Mr Williamson while you were walking around the property that you did not hear? A. I doubt I would have missed anything of look, it was just a very light hearted visit looking around. Q. The answer to my question is you can't be certain that there were not things that Mr Williamson said to Mr Hannan or Mr Hannan said to Mr Williamson that you did not hear? A. Well, I believe there could be less than a half per cent likelihood that I missed something. I was interested and wanting to be a part of the discussion. Q. There is a possibility you didn't hear everything? A. A fine, very small possibility."
The evidence of Ms Williamson says nothing about the "ghosts" conversation pleaded by the Plaintiff in support of his claim in fraud.
Accordingly, it is necessary for the Court to determine this critical issue of fact as to what was, or was not, said by Mr Hannan to the Plaintiff on this topic.
I have kept in mind that Mr Hannan died on 3 July 2015, one month before the Plaintiff commenced the present proceedings by the filing of the initial Statement of Claim on 3 August 2015. As mentioned earlier, Mr Hannan's evidence is before the Court in these proceedings in the form of his affidavits which were prepared for, and relied upon, in the proceedings against the Plaintiff's former solicitors heard by Adamson J in 2015. I have kept in mind that it was not possible for the Plaintiff to test the evidence of Mr Hannan by cross-examination in these circumstances. Nor was it possible for the Court to observe Mr Hannan giving evidence.
However, the Court has the benefit of the totality of evidence adduced in these proceedings, which permits findings of fact to be made by reference to the account given by Mr Hannan and those of the Plaintiff and Ms Williamson.
The Plaintiff maintains that he had no knowledge of the quarry development application affecting "Ardmore Park" before he purchased "Reevesdale" in July 2007. The Plaintiff asserts that had he known of this, he would not have purchased "Reevesdale" nor entered into the new loan arrangement with Rabobank to cover the purchase of "Reevesdale", and the refinancing of his loan from the National Australia Bank ("NAB") for the Paddington property.
Accordingly, it is the Plaintiff's case that he was shocked to learn in September 2007 of the quarry development application and that this omission on the part of Mr Hannan, coupled with what the Plaintiff asserts is the false assertion that he was told about this, gives rise to the present cause of action.
A central difficulty for the Plaintiff in these proceedings is his failure to complain to anyone after learning (as he asserts that he did for the first time) of the quarry development application affecting "Ardmore Park" in September 2007. As an intelligent and sophisticated businessman and solicitor, the Plaintiff's omission to complain loudly and clearly about this aspect, in and after September 2007, flies in the face of his assertion that he had learned then for the first time of this matter. I will return to this topic later in this judgment.
The only real (and limited) support which the Plaintiff has for his version is in the form of the evidence of his former wife, Lucinda Williamson. In an affidavit sworn 22 November 2017, more than 10 years after the events in question, Ms Williamson states that she did not observe any signage in the area of the Bungonia village and that there was no suggestion, from any signage or conversation in her presence with Mr Hannan, that there would be or had been an application to develop a quarry in the neighbouring area.
As indicated earlier, I accept the evidence of Ms McGinity that there were banners in the Bungonia area and along Mountain Ash Road, at all relevant times from 2005 and up to 7 July 2007. I do not accept the evidence of Ms Williamson that there were not banners of that type present when she visited on this occasion in April 2007. Ms Williamson acknowledged that the events affecting the Plaintiff and her family since 2007 had been difficult, with the period from around October-November 2010 being "very difficult years" (T141).
The absence of any complaint, at an early time after September 2007, by the Plaintiff or Ms Williamson with respect to the suggested false representation by Mr Hannan, constitutes a particular difficulty for the Plaintiff's case in these proceedings. This difficulty affects the evidence of Ms Williamson as well as that of the Plaintiff himself. The Plaintiff Moves to Purchase "Reevesdale"
The Plaintiff acknowledged in cross-examination that he "fell in love" with "Reevesdale" when he visited the property (T45, 48). The Plaintiff saw a tax advantage in buying a primary production property, so as to be able to claim tax deductions including for prepayment of interest on a loan for the 2007 financial year (T48-49). According to the Plaintiff, the purchase price of $1.675 million for "Reevesdale" was "a steal" (T39, 48-49).
The Plaintiff wished to borrow a total of $2,750,000.00, made up of $1,800,000.00 for "Reevesdale" and $950,000.00 to refinance his NAB mortgage over the Paddington property. On 24 May 2007, Rabobank provided the Plaintiff with indicative loan terms (Exhibit F, Tab 1).
In email correspondence between 28 and 31 May 2007 with Christopher Twyford, the Rural Manager of Rabobank, the Plaintiff made clear his strong interest in purchasing "Reevesdale", and obtaining a loan to cover the refinancing of the mortgage on the Paddington property as well.
The Plaintiff's solicitor for the purpose of the purchase of "Reevesdale" was Wally Meakes of Carneys.
On 1 June 2007, the Plaintiff on the letterhead of "Williamson Solicitors Pty Limited", provided a copy of a deed to Mr Twyford in support of his assertion that a significant sum by way of professional legal fees would be forthcoming to him from certain litigation then on foot (Exhibit E). I accept the submission for the Defendant that the Plaintiff's representations in this letter were fanciful and misleading, based upon what was effectively an unlawful arrangement where legal fees were to be calculated upon the basis of a percentage of an expected verdict. This aspect does not help the Plaintiff in an assessment of his credit as a witness.
On 4 June 2007, the vendor of "Reevesdale" accepted the Plaintiff's offer to purchase the property for $1.675 million (Exhibit F, Tab 5).
In an email dated 7 June 2007 to Mr Bridges at Cassim Real Estate, the Plaintiff said, amongst other things, "I hope this will be very quick - it needs to be - as this transaction is, of course, tax driven - apart from anything else" (Exhibit G, Tab 10).
On 12 June 2007, the Plaintiff gave a General Power of Attorney to his solicitor, Mr Meakes (Exhibit G, Tab 12).
In an email to Mr Twyford dated 18 June 2007, the Plaintiff asked that Mr Twyford "do everything possible to make sure drawdown is available before 30 June 2007". He continued "That is after all what has driven the transaction. After all of the various exchanges it would be a shame if we missed that point" (Exhibit G, Tab 13).
Following a hearing which proceeded over eight sitting days in May 2007, on 19 June 2007, Jagot J handed down judgment dismissing CEAL's appeal with respect to the quarry development application at "Ardmore Park": CEAL Limited v Minister for Planning and Ors (2007) 159 LGERA 232; [2007] NSWLEC 302 (Exhibit G, Tab 31).
In an email dated 20 June 2007, the Plaintiff was once again pressing Mr Twyford saying "I am just anxious that things happen!" (Exhibit G, Tab 15).
On 21 June 2007, the Plaintiff travelled to the United Kingdom (T70). Before his departure, the Plaintiff had gone through the contract of sale with Mr Meakes (T76-79). Schedule E to the Contract for Sale of Land (Exhibit H) contained (in Clause 3) a warning that intending purchasers be advised that legitimate rural and agricultural uses of land may include, amongst other things, construction of access roads and tracks, extractive industries, mines and ancillary works and rural industries. In a conversation with Mr Meakes, the Plaintiff said "I've done my due diligence already" (T73).
In cross-examination, Mr Robertson asked the Plaintiff about his knowledge of Schedule E to the Contract for Sale of Land, as a result of his discussion with Mr Meakes (T77-79): "Q. Mr Williamson, you do recall Mr Meakes telling you that clause 3 sets out all the legitimate uses and practices allowed on the land? A. Yes. Q. And you looked at schedule E as he was explaining it to you? A. Yes. Q. Having done that, it would have been apparent to you that the uses include construction of roads, correct? A. Yes, sorry, yes. Q. Construction of roads and tracks? A. Yes. Q. [Extractive] industries? A. Yes. Q. Mining and ancillary works? A. Yes. Q. And rural industries? A. Yes. Q. And that would have been obvious to you if you had read that? A. Yes. Q. And you did look at it while you were with Mr Meakes? A. Yes. Q. Paragraph 4 says: 'Intending purchasers of rural land, who consider they may have difficulty in living with the above practices being carried out on adjacent land, should seriously consider their position with respect to purchasing in a rural area. Many rural and agricultural practices, by necessity, are carried out very early in the morning or late in the evening.' Do you remember that? A. Yes. Q. And you looked at that in 2007 with Mr Meakes? A. Yes. Q. So, there is a specific warning to you that if you have difficulty living with extractive industries, mining and ancillary works, you should seriously consider your position? A. Yes. Q. And you subsequently took a copy of the contract away with you? A. I think I had one anyway. Q. So, you had a copy of the contract? A. Yeah. Q. And you read that contract with some care? A. Yes. Q. And when do you say you did that? A. I don't know. I can't tell. It's 10 years ago. Q. All right. So you accept that when you before purchasing Reevesdale you had read schedule E and clauses 3 and 4 in particular of that document? A. Yes. Q. And you say you read it with great care? A. Well, I had a lot of work to do before I went away so I didn't pretend that I was doing the job of Wally Meakes but I read it with a certain amount of care, certainly. Q. So, the proposition is you knew full well when you signed this contract and exchanged the contract in similar terms in July 2007 that in fact there was a significant risk of mining activities being permitted to be carried on on adjoining properties? A. But that is copperplate clause and we were not told about any DA. Q. You read clause 4 of schedule E that's on page 66? A. Yes. Q. And you had no difficulty understanding what it was telling you? A. No. Q. And you understood that clause 4 was referring to all of the items in clause 3? A. Yes. Q. And you understood that regardless of whether there was a present application on foot there could at any time in the future be an application on foot for any of those brought by a neighbour to carry on any of those items? A. Yes. Q. And you signed the contract to purchase Reevesdale fully aware of that fact? A. Yes."
On 25 June 2007, the Plaintiff emailed Mr Meakes and Mr Fitzsimons saying, amongst other things, "Obviously the tax deductibility (and rapidly approaching June 30) is becoming an issue" and that "extremely quick movement is needed and may be a face to face with Rabo's solicitors". It is clear that the Plaintiff was pressing for a swift settlement at that time (Exhibit G, Tab 16).
On 26 June 2007, Mr Twyford wrote to the Plaintiff by way of a letter of offer for a new all-in-one account with a loan limit of $3,025,000.00. The offer contained a post-settlement special condition that the sum of $725,000.00 be paid by 30 April 2008 and, if that was not done, the Plaintiff would undertake to sell the Paddington property on or before 31 July 2008, in order to make a permanent repayment of not less than $2,075,000.00 to reduce the loan limit to $950,000.00 (Exhibit G, Tab 18). It is clear that the Plaintiff was prepared to enter into such an arrangement, which would place him under significant financial pressure by July 2008.
An email from the Plaintiff to Mr Meakes and Mr Fitzsimons on 28 June 2007 demonstrated again his desire for an urgent settlement of the matter, with the Plaintiff saying "I'm having kittens here so can someone let me where we are at!!!" (Exhibit G, Tab 19).
By email dated 29 June 2007 to Mr Twyford and copied to Mr Meakes and Mr Fitzsimons, the Plaintiff said "I have heard nothing so I am resigned to the fact that this will not happen until Wally is back" and "Steve [Fitzsimons] has arranged a different June 30 solution so it is not so urgent anymore" (Exhibit G, Tab 19).
By letter dated 6 July 2007, Mr Meakes sent to Rabobank an original letter of offer signed by Mr Meakes under Power of Attorney for the Plaintiff, and signed as well by Keith Johnson as an alternate director of Williamsons Solicitors Pty Limited (Exhibit G, Tab 21).
By letter dated 19 July 2007, the solicitors for the vendor of "Reevesdale" wrote to Mr Meakes, indicating that the vendor was not prepared to delay the settlement any further (Exhibit G, Tab 22). Mr Meakes responded that day by letter indicating a desire to settle the matter on 23 July 2007 (Exhibit G, Tab 24). The Plaintiff Purchases "Reevesdale" on 24 July 2007
Settlement was then arranged for 24 July 2007 (Exhibit G, Tabs 24 and 25).
Settlement of the Plaintiff's purchase of "Reevesdale" took place on 24 July 2007 by way of simultaneous exchange of contracts and settlement (Exhibit G, Tab 28).
The Plaintiff asserts that it was in September 2007 that he learned for the first time about the quarry development proposal at "Ardmore Park", although he acknowledged in evidence that he had previously stated (at the hearing before Adamson J on 27 July 2015) that it was in October 2007 that he had first learned of this matter (T97; Exhibit J).
On 31 October 2007, CEAL lodged a revised development application for the construction and use of part of the land of "Ardmore Park" as a quarry. The Plaintiff's Thoughts About "Reevesdale" in January 2008
On 24 January 2008, the Plaintiff wrote to Mr Twyford of Rabobank (Exhibit F, Tab 7). It is noteworthy that the Plaintiff said nothing in this letter concerning his alleged recent discovery of the quarry development application on "Ardmore Park". This is a significant piece of evidence of a failure to complain on the part of the Plaintiff concerning a topic which, if his evidence is to be believed, was uppermost in his mind at that time.
The failure to complain undermines the Plaintiff's version that he had been misled in some way by Mr Hannan with respect to his purchase of "Reevesdale". The contents of this letter are inconsistent with the Plaintiff having any concerns about a possible quarry development near "Reevesdale". Indeed, in this letter, the Plaintiff informed Mr Twyford that he had "indicative permission for a 15-20 bedroom boutique agritourism hotel/conference centre within the coach house" at "Reevesdale". The Plaintiff agreed during cross-examination that these were "rather ambitious plans" and said that he had a builder ready to commence the work at that time (T109-110). A little later in the letter (page 4), the Plaintiff informed Mr Twyford that "Reevesdale" was, in his opinion, undervalued. He said: "The Reevesdale asset is undervalued in that it is clear that there is a great deal of value in it which has been hitherto not recognised or included for the purpose of valuation. The Sydney Canberra corridor plan includes Bungonia and Marulan and the Southern Highlands effect is clearly on the move. Also the plans for Marulan mining establish the area in a commercial way that has been hitherto unknown. Additionally rural outlooks and values are on the up. We believe that the property properly utilized is worth $3m and an absolute minimum of $2.5m." The Plaintiff Raises Issues About the Proposed Quarry in January 2009
By letter dated 16 January 2009 to Mr Meakes, the Plaintiff asserted that he "was unaware that there was proposed to be a quarry right on the boundary of 'Reevesdale'" and sought documents from Mr Meakes "in order to take action against the [Mulwaree Shire] Council" (Exhibit F, Tab 6). The letter from the Plaintiff to Mr Meakes included the following: "It is not merely a matter of the quarry development detracting from the value. The property I bought was also placed in a buffer zone. That recognizes the fact that there will possibly be contamination of my land. It is not merely a matter of diminution in value, it is also likely that once the quarry activity commences, there will also be a danger to my cattle as the quarry activities will produce a level of toxins. The State Government has accepted this as a major project application again and the signs are that there will be a never ending succession of applications even if this one fails. The project proponent has stated that will not cease applying until it gets permission. The current application is due to be decided in about May 2009. However, that will not resolve matters. What these circumstances have led to is the need for me to sell Paddington rather than Reevesdale. It being the worst time for a property sale for many years I will be forced to take a big loss on Paddington. That loss is approximately $1M. If I were to try to sell Reevesdale the loss is likely to be even worse."
On 21 January 2009, the Plaintiff wrote to Mr Twyford of Rabobank (Exhibit F, Tab 6). In the course of the letter, the Plaintiff said: "Reevesdale 346, lnverary Station, Bungonia Since we bought in July 2007 there has been a further application for a quarry next door. The Council did not disclose to us that the property was in a 'buffer zone'. I am not sure yet whether Carneys Lawyers made the relevant enquiry. I have asked for the papers to be supplied to me. The Government is to make a decision on the quarry issue by May 2009. I attach a copy of a letter I have sent to Wally Meekes [sic] at Carneys Lawyers ('annexure 2'). If Wally did not make appropriate enquiries then he has been negligent. The lack of information coming through to me has taken away my loss of bargain. It might come back but right now is not the time to try to sell Reevesdale. Instead I have been forced to sell Cascade Street. That will mean a loss because prices are depressed. This would not have arisen had I not lost the 'bargain' which Reevesdale was. The bargain was that Mr Cooper had been selling for $3M but we got it for much less. If it had been worth the price for which it was originally for sale we would not now have the problems which we have as it would be reasonable to suppose that we could have gained more time to deal with the effects of the credit crunch and downward spiraling [sic] values. In other words we would not have been forced to sell an asset at the worst possible time. The reality is that we cannot now sell Cascade St except at a huge loss."
Thus, the Plaintiff's first complaint about this topic was made in January 2009 (T107). It is notable that the Plaintiff did not complain in his letter to Mr Meakes of 16 January 2009, nor his letter to Mr Twyford of 21 January 2009, concerning Mr Hannan or the Defendant. It appears that the targets of the Plaintiff's unhappiness at that time were Mulwaree Shire Council and Mr Meakes. Importantly, once again, there is no sign of any complaint by the Plaintiff that he had learned (in September or October 2007) of the quarry development proposal and that he was concerned at that time that there had been some false representation made to him by Mr Hannan in this regard. He said nothing about the alleged "ghosts" conversation.
On 1 September 2009, the Paddington property was sold.
On 20 September 2009, the Minister approved the revised application by CEAL for the construction and use of part of the land on "Ardmore Park" as a quarry.
The Plaintiff stated that he had a brain abscess on 4 November 2010 (affidavit, Plaintiff, 20 November 2017, paragraph 2). There is no medical evidence before the Court in the present proceedings, but it was not controversial that the Plaintiff had become significantly ill in 2010, with that aspect being referred to in the evidence of the Plaintiff and his former wife, Ms Williamson (T141).
In 2012, the Plaintiff commenced proceedings in the Supreme Court of New South Wales seeking damages from Carneys for alleged professional negligence.
In May 2013, "Reevesdale" was sold.
On 3 July 2015, Mr Hannan passed away (Exhibit G, Tab 30).
Between 27 and 29 July 2015, the hearing of the Plaintiff's claim against Carneys proceeded before Adamson J, with her Honour giving judgment in favour of the Defendants on 5 August 2015.
On 3 August 2015, the Plaintiff commenced the present proceedings which, at that stage, were against the Defendant and also Bendigo and Adelaide Bank Limited (as First Defendant), Rural Bank Limited (as Third Defendant), Belinda Thompson (as Fourth Defendant) and Allens (as Fifth Defendant).
Since 3 August 2015, the proceedings have been amended, by one means or another, so that the sole remaining party sued by the Plaintiff is the Defendant upon the basis that it is liable for the alleged false representation of its employee, the late Mr Hannan.

The Plaintiff's Submissions

The Plaintiff furnished written submissions (MFIs 6 and 7) and made oral submissions at the conclusion of the evidence.
The Plaintiff submitted that fraud had been established in that Mr Hannan had deliberately deceived the Plaintiff and his wife and, in doing so, had caused them to purchase "Reevesdale" when they were entirely unaware that the value of that property was likely to be significantly impacted by the quarry development proposal on a nearby property.
The Plaintiff submitted that Mr Hannan's affidavit of 21 April 2015 was untrue, and could only be explained as a deliberate deception aimed at masking the true nature of what he (Mr Hannan) did in 2007.
The Plaintiff submitted that the Court should accept his own evidence as being truthful and reliable, together with that of his former wife, Ms Williamson. He submitted that the Court should not accept the evidence of Ms McGinity concerning the location of protest banners in the Bungonia area as at April 2007.
The Plaintiff relied upon the evidence of Mr Fitzsimons as to calculation of damages. The Plaintiff submitted that he would not have purchased "Reevesdale" in July 2007 had he known of the quarry development application, and that he was forced to sell the Paddington property and ultimately lost the "Reevesdale" property as well, with these events being the result of Mr Hannan's false representation for which the Defendant was liable.
The Plaintiff submitted that the Court should not find that the Plaintiff's claim was statute barred by s.14 Limitation Act 1969 because, it was submitted, there had been a deliberate deception by Mr Hannan so that the limitation period was affected in that respect (T175-178). The Plaintiff acknowledged that there was no medical evidence upon which he could rely for the purpose of the disability provision in the Limitation Act 1969 (T178-179).

The Defendant's Submissions

Mr Robertson submitted that the Plaintiff's claim failed for a number of reasons, any one of which was fatal and should lead to a verdict being returned for the Defendant.
It was submitted that the proceedings are statute barred. The Plaintiff signed the contract to purchase "Reevesdale" and simultaneously settled the purchase on 24 July 2007. Any loss sustained by the Plaintiff arose at that time: Potts v Miller (1940) 64 CLR 282; [1940] HCA 43 at 297-299. The proceedings were not commenced until 3 August 2015, by which time the proceedings were statue barred pursuant to s.14(1) Limitation Act 1969.
It was submitted that the Court would not find that the limitation period was postponed because of any alleged fraud, and there was no evidence of disability which would have this effect either. Accordingly, it was submitted, the Court should find that the proceedings were statute barred, this being an issue which N Adams J left to be considered and determined at the final hearing (see [22]-[23] above).
If the Court proceeded to consider the claim on its merits, it was submitted for the Defendant that the evidence did not establish that Mr Hannan made the representation pleaded by the Plaintiff in paragraphs 21-23 of the Third Further Amended Statement of Claim.
Even if that representation was established, it was submitted for the Defendant that the representation pleaded by the Plaintiff, in paragraphs 21-23 of the Third Further Amended Statement of Claim, could not amount to an actionable false representation. It was submitted that there was no evidence that anything Mr Hannan said to the Plaintiff (on the Plaintiff's version) was false. In particular, it was submitted that there was no evidence (if it were otherwise relevant) that the quarry development proposal was the reason why the vendor was selling "Reevesdale".
The Defendant submitted that there is no evidence that Mr Hannan knew or believed that anything he said to the Plaintiff was false.
In any event, it was submitted for the Defendant that the evidence established that the Plaintiff was made aware of the quarry development proposal before entering into the contract to purchase the property. It was submitted that the Plaintiff, in deciding to purchase "Reevesdale", did not rely upon anything Mr Hannan said about the reasons why the vendor was selling the property.
The Defendant submitted, in any event, that the Plaintiff suffered no loss by reason of any reliance (which was disputed) on anything said by Mr Hannan or the Plaintiff's ignorance of the quarry development proposal. Mr Robertson submitted that the evidence of Mr Reardon established that, at the time of the contract for purchase and for years afterwards, "Reevesdale" was worth more than the Plaintiff paid for it and thus the Plaintiff did not acquire a property which was worth less than he paid for it and he sustained no loss: Potts v Miller at 297-299; Wardley Australia Limited v State of Western Australia (1992) 175 CLR 514; [1992] HCA 55 ("Wardley") at 533-535, 537-538.
The Defendant submitted that the losses sustained by the Plaintiff by reason of the forced sale of "Reevesdale" in 2013, and the sale of the Paddington property in 2009, were not in any sense caused by any representation that might have been made by Mr Hannan.
The Defendant submitted, in any event, that the Plaintiff's calculations of loss were grossly inflated.
Finally, if this point was reached, the Defendant submitted that the Plaintiff had failed to mitigate his loss by failing to sell either "Reevesdale" or the Paddington property in September 2007 by which time, on his version, he was aware of the quarry development proposal.
Mr Robertson developed arguments with respect to these topics leading to the submission that the Plaintiff's claim should be dismissed with a verdict being entered for the Defendant.

An Allegation of Fraud - Onus and Standard of Proof

The Plaintiff's claim in these proceedings is based upon an allegation of fraud or the making of a false representation. The Plaintiff bears the onus of proof on the balance of probabilities. However, s.140(2) Evidence Act 1995 has application given the nature of the claim in this case.
Section 140(2) imports the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 in requiring a court, when considering whether it is satisfied on the balance of probabilities, to take into account the gravity of the matters alleged in relation to the question: Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 at [61]; Palmer v Dolman [2005] NSWCA 361 at [40]-[47]. The state of reasonable satisfaction required for the purpose of making such a finding "should not be produced by inexact proofs, indefinite testimony, or indirect inferences": Briginshaw v Briginshaw at 361-362 (Dixon J).
In Vu v New South Wales Crime Commission [2013] NSWCA 282, McColl JA (Meagher and Emmett JJA agreeing) said at [77]-[78]: "77 As the primary judge recognised (at [33]), the standard of proof in the circumstances was to be considered by reference to s 140(2) of the Evidence Act which relevantly requires a court hearing a civil proceeding to take the nature of the cause of action, the subject matter of the proceedings and the gravity of the matters alleged into account in deciding whether it is satisfied that a party has proved its case on the balance of probabilities. As is apparent from its language, s 140(2) reflects Dixon J's statement in Briginshaw v Briginshaw (at 362): see also Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 86 ALJR 522 (at [228]) per Heydon J; Employment Advocate v Williamson [2001] FCA 1164; (2001) 111 FCR 20 (at [65]) per Branson J (Kenny J agreeing). 78 The mandatory considerations s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence; accordingly, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at [30]) per Weinberg, Bennett and Rares JJ."

Some Further General Observations Concerning the Evidence and Witnesses

Before moving to determine the principal issues in dispute by reference to the submissions, some general observations are appropriate concerning the evidence and the witnesses.
The Plaintiff's claim is based substantially upon his own evidence. He asserts that nothing was said to him about the quarry development proposal prior to settlement on 24 July 2007, and that there were no banners on the roadside in Bungonia at times when he drove through which suggested that there was some controversy involving truck usage of the roads. The Plaintiff's evidence to that effect has come under substantial challenge in cross-examination.
It should be kept in mind that the Plaintiff is legally qualified and was an experienced solicitor. The evidence indicates he was involved in a range of business ventures as well. The Plaintiff was not naïve and his acts in 2007 were designed to advance his position including tax advantages. There is evidence that the Plaintiff suffered from a brain abscess in 2010. There is no medical evidence concerning this aspect, nor any evidence that relates directly to the limitation defence pleaded by the Defendant.
The Plaintiff was an unimpressive witness who had a tendency to not answer questions directly or to respond in an argumentative fashion. He has a firm and fixed view concerning these proceedings.
Both the content of his evidence and his demeanour did not assist the Plaintiff's case. He had a strong tendency to be an advocate in his own cause as he was giving evidence, and to give non-responsive answers despite being cautioned by the Court against this practice. Frequent examples of this approach may be seen in the evidence of the Plaintiff (T44, 56, 57, 58, 65, 72, 76-77, 80-81, 82, 84-85, 88-89).
I have kept in mind that the Plaintiff is legally qualified and experienced in the commercial world. The fact that the Plaintiff has a substantial interest in the outcome of the proceedings is pertinent. Also relevant is the fact that the Plaintiff determined not to commence proceedings against the Defendant, based upon Mr Hannan's alleged false representation, until Mr Hannan had died.
I approach the Plaintiff's evidence upon the basis that it should not be acted upon in areas of controversy unless it is corroborated by independent objective (and preferably contemporaneous) evidence.
There is a noteworthy gap in the Plaintiff's case. If it was the position that he regarded the quarry development proposal as being a critical aspect which would have caused him not to purchase "Reevesdale" in July 2007, then common-sense would suggest that he would have been complaining loudly and frequently to Mr Hannan, the Defendant and his own solicitor, Mr Meakes, after he learned (as he said he did) of the quarry development proposal in about September 2007. The Plaintiff does not seem to be a person who would be reluctant about coming forward and speaking his mind, if he regarded some event as comprising his personal or financial interests. It is reasonable to expect that he would have confronted Mr Hannan and said to him "Why didn't you tell me about this quarry proposal?". There is no such evidence here. Indeed, the Plaintiff's first complaint about Mr Hannan was made after Mr Hannan's death in July 2015.
The Plaintiff's explanation as to why he did not complain about Mr Hannan earlier is that he worked for a period with the Local Action Group in an effort to defeat the quarry development proposal (T99-101). He says that, if the quarry proposal was defeated, then all would have been well for him. However, this misses the point. If the Plaintiff had been deceived by a false representation from Mr Hannan as he alleges he was, then an early and loud complaint to that effect would be expected, perhaps accompanied by an indication that, if the quarry proposal was not defeated, he would contemplate bringing legal proceedings against Mr Hannan and the Defendant. That did not happen. The Plaintiff's failure to act in this way is a significant factor operating against an acceptance, as truthful and reliable evidence, of his claim of having been deceived by Mr Hannan in mid-2007.
Further, it might be thought that it was a highly dangerous strategy by Mr Hannan if, as the Plaintiff claims, Mr Hannan had falsely omitted to tell him about the quarry development proposal in circumstances where it was likely that the Plaintiff would make his own enquiries in the area and, of course, had a solicitor acting for him in the conveyance. The fact that the quarry development proposal had been made was hardly a secret in the area. Indeed, the hearing before Jagot J in the Land and Environment Court had proceeded over eight sittings days in May 2007 (Exhibit G, Tab 31). It might be thought that the citizens of Bungonia spoke of little else in this period so that it would be a highly risky strategy for Mr Hannan to have tried to hide this aspect as the Plaintiff alleges that he did. This aspect counts against the Plaintiff's case that Mr Hannan had falsely omitted to tell him about the quarry development proposal.
Mr Fitzsimons gave evidence in the Plaintiff's case. He had been the Plaintiff's accountant between 1994 and 2013 (T145). Mr Fitzsimons had been cross-examined (to some effect) by Mr Sullivan QC at the hearing before Adamson J in 2015 relating to the Plaintiff's claim against Carneys. Part of the transcript of the cross-examination of Mr Fitzsimons in those proceedings became an exhibit in this case (Exhibit N). What became clear was that Mr Fitzsimons had made a series of concessions under cross-examination in the 2015 proceedings. However, he did not mention or apply these qualifications to his opinion when swearing his affidavit in these proceedings (T151). He acknowledged some of these concessions fairly readily under cross-examination before me. However, it took a considerable time for Mr Fitzsimons to agree under cross-examination that he had double counted an amount of some $805,000.00 in the Plaintiff's favour (T154-157). Mr Fitzsimons was not an expert witness who was introduced to the proceedings only for the purpose of giving an independent expert opinion about past events in which he was not involved. In fact, he was actively involved in a number of ways in events, as is apparent from emails which were copied to him when communications were being made with Rabobank (part Exhibit F) and in Mr Fitzsimons' own email to Rabobank dated 24 May 2007 (Exhibit M). He was not at arm's length from the Plaintiff.
These issues bear upon the weight to be given to the evidence of Mr Fitzsimons: MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 3) [2010] NSWSC 243 at [40]-[-45]; Lake Macquarie City Council v Australian Native Landscapes Pty Limited [2015] NSWLEC 92 at [5]-[15].

Decision

Having made a number of observations concerning aspects of the evidence and the witnesses, it is appropriate to turn to the submissions made for the Defendant as to the various bases upon which the Plaintiff's claim should be dismissed. The Limitations Issue
It was common ground that the Plaintiff's cause of action attracted a six-year limitation period: s.14(1)(b) Limitation Act 1969.
The Defendant submitted that the Plaintiff's cause of action arose on 24 July 2007, the date when there was a simultaneous exchange of contracts and settlement of the sale of "Reevesdale". The Defendant submitted that any loss which the Plaintiff allegedly sustained arose at that time: Potts v Miller at 297-299. Upon this basis, the Defendant submitted that the Plaintiff was required to commence proceedings before 24 July 2013 and he did not do so. It was noted that there was no plea of postponement in the Third Further Amended Statement of Claim against the background of N Adams J having made clear at an interlocutory stage, that the limitation issue with respect to the fraud claim was an issue to be determined at the trial.
The Defendant noted that the Plaintiff had not sought to rely upon s.52 Limitation Act 1969, which provides that a limitation period may be suspended for the duration of a disability from which the Plaintiff was suffering. It was noted that there is no medical evidence in the proceedings, nor any plea of incapacity which might attract for consideration the operation of s.52.
The Defendant noted as well that the Plaintiff had not pleaded reliance upon s.55(1) Limitation Act 1969, which provides for a limitation period to not count on a cause of action based on fraud, in circumstances where the person first discovers (or may with reasonable diligence discover) the fraud. Section 55(3) Limitation Act 1969 provides relevantly that, for the purposes of s.55(1), a person is answerable for fraud if, but only if, the person is a party to the fraud.
Although the Plaintiff has not pleaded reliance upon s.55 in the Third Further Amended Statement of Claim, his submissions apparently sought to rely upon that provision (T174-177, 204-205). The Plaintiff contended that it was not until 9 May 2014 that he became aware of Mr Hannan's account of events. It was on that day that K&L Gates, the solicitors for Carneys in the 2012 proceedings brought by the Plaintiff, served on the Plaintiff's then solicitors a statement of Mr Hannan dated 14 November 2013, which was in similar terms to Mr Hannan's affidavit of 21 April 2015 (affidavit, Plaintiff, 14 August 2017, Annexures B and C).
The Plaintiff argued that it was not until May 2014 that he became aware of Mr Hannan's account, which the Plaintiff says is false, and which also disclosed that Mr Hannan did have knowledge of the quarry development proposal prior to 24 July 2007. In this way, the Plaintiff seeks to rely upon s.55 Limitation Act 1969 to overcome the limitation period which otherwise applies to his claim.
In addition, the Plaintiff submitted that his cause of action did not commence to run until he had suffered loss. The Plaintiff contended that this did not occur until November 2013 at the earliest (T203-204).
It has been apparent since the decision of N Adams J on 22 April 2016 that the Defendant's reliance upon the Limitation Act 1969 was an issue which the Plaintiff would need to confront at the trial of these proceedings. It might have been thought that he would have done so by an amendment to his pleading, or the filing of a Reply which articulated the basis upon which he sought to resist the limitation point pleaded against him by the Defendant. The Plaintiff did not take this course. Instead, he has sought to respond orally, and in general terms, to submissions made on behalf of the Defendant on this issue.
I accept that the measure of damages, in a case where a person alleges he was induced by fraud to purchase property, is to be determined by ascertaining the difference between the purchase price and what would otherwise have been a fair price to have been paid for the property at the time of the purchase: Potts v Miller at 297. The damages are to be measured by the difference between the real value of the property and what the purchaser paid for it. Where a false representation induces the purchasing of an asset and payment of a price greater than the value of the asset purchased, the difference between the price and the value of the asset represents how much worse off a person is than if he had not entered into the transaction: Wardley at 535, 537-538. This formula focuses upon the position as at 24 July 2007.
The Plaintiff sought to rely (T203-204) upon the statement of Brennan J in Wardley at 538 that, when the actual loss that a plaintiff suffers depends not only on the making of an agreement, but also on circumstances extrinsic to the agreement, the loss is not suffered until those circumstances have transpired and, in benefit and burden cases, not until the loss is ascertainable.
I do not consider that the Plaintiff is assisted by this passage from Wardley. In my view, the Plaintiff's cause of action (if he had one) requires the measure of damages to be undertaken as at 24 July 2007.
In the circumstances of this case, I am satisfied that the six-year limitation period upon the Plaintiff's cause of action commenced to run on 24 July 2007 and expired by 24 July 2013, unless some provision of the Limitation Act 1969 served to postpone it.
Having considered the submissions made by the parties with respect to the limitations issues raised in the proceedings, I am satisfied that the Plaintiff was required to commence the present proceedings by 24 July 2013. The Plaintiff did not commence the present proceedings until 3 August 2015. The present claim is statute barred unless there is some provision which the Plaintiff can call in aid to postpone the limitation period in this case.
The only foundation in the evidence upon which the Plaintiff could rely is s.55 Limitation Act 1969. In effect, the Plaintiff can only succeed in overcoming the limitation problem which he faces if he can make good the claim in fraud against the Defendant. As will be seen, I have concluded that the Plaintiff fails in this respect. A consequence of this finding is that the Court should conclude that the Plaintiff's claim is statute barred in any event.
For reasons expressed so far and to follow, I am satisfied that the Plaintiff's claim is statute barred by operation of s.14(1)(b) Limitation Act 1969.
However, as all issues in the proceedings were fully argued, I will proceed to deal with other aspects of the Plaintiff's claim as well. Conclusions With Respect to Liability on Issues Other Than the Limitation Period
As was submitted for the Defendant, a necessary starting point is to understand what the Plaintiff has pleaded as the false representation allegedly made by Mr Hannan, which is said to give rise to the cause of action in case. The Plaintiff's pleading in this regard was set out earlier in this judgment (at [47]-[49] above).
Mr Robertson submitted (correctly) that the evidence adduced by the Plaintiff at the hearing does not establish the pleaded representation. Reference was made earlier to the evidence of the Plaintiff on this aspect (at [112] above).
The Defendant submitted (correctly) that the Plaintiff's own evidence did not establish that any specific request was made by the Plaintiff to Mr Hannan enquiring as to why the property was on the market. In that sense, the evidence does not support the Plaintiff's pleaded case.
Nor is the Plaintiff's case assisted by the evidence by his former wife to which reference was made earlier (at [54]-[56]).
The Defendant submitted that the Court should not seek to draw inferences favourable to the Plaintiff on these matters by reference to Ms Williamson's evidence, where the Plaintiff made no attempt to prove the alleged conversation by direct evidence and with no questions being asked of Ms Williamson in this respect: Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 388 ("Ferrcom") at 418-419 (Handley JA). It was submitted that an omission to interrogate a friendly witness with respect to facts presumably within the witness' knowledge is more significant than a failure to call such a person as a witness, so that the presumption that the testimony would not have been favourable to the party's case is stronger than one which arises from the failure to produce such a person as a witness: Ferrcom at 419.
The Defendant relied, as well, upon Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563; [1995] HCA 68 ("Krakowski") at 576-577 [23]-[24], where Brennan, Deane, Gaudron and McHugh JJ said (footnotes omitted): "23. When fraud is alleged against a defendant, it is not enough to prove that the representation as pleaded was false. The words or conduct by which a representation is made may be understood in different senses. The words or conduct may be understood by a reasonable person in the position of the representee in one sense, by the representee in a second sense and by the representor in a third sense. Or the representee may understand the words or conduct in a sense which the representor knew the representee might understand them, albeit not in the sense in which a reasonable bystander would understand them. The differing senses in which words or conduct are understood must be borne in mind in determining whether the several elements of deceit are proved. 24. The sense in which a representation would be understood by a reasonable person in the position of the representee is prima facie the sense relevant to the question whether the representation is false. The sense in which a representation is understood by the representee is relevant to the question whether the representation induced the representee to act upon it. And the sense in which the representor intended the representation to be understood is relevant to the question whether the representation was made fraudulently."
The Defendant placed reliance as well upon the principle that, in order to succeed in fraud, a representee must prove, amongst other things, that the representor had no honest belief in the truth of the representation in the sense in which the representor intended it to be understood: Krakowski at 578.
Relying upon these authorities, the Defendant submitted that neither the pleaded representation, nor the representation asserted by the Plaintiff, is an actionable false representation. Neither version, it was submitted, would be understood by a reasonable person in the position of the Plaintiff as a representation that the reason why the property was on the market was because Mrs Cooper had seen ghosts, and that the quarry development application had nothing to do with it.
Mr Robertson submitted that what Mr Hannan is alleged to have said in this case did not represent that the only reason why the vendor was selling was that Mrs Cooper believed that she had seen ghosts and that there was no other reason. The position was not sufficiently ambiguous to be capable of being found to be false so that, applying the relevant principles, the Plaintiff's claim could not succeed on this basis either.
I am satisfied that the principles to be applied with respect to the Plaintiff's cause of action are explained sufficiently in Krakowski.
I take into account as well the principles in Ferrcom which relate to the failure of the Plaintiff to adduce evidence from Ms Williamson of the conversation between the Plaintiff and Mr Hannan which supports the pleaded claim.
In this regard, I have kept in mind the caution required where a Jones v Dunkel-type submission is made by reference to evidence which is not called or given by a party or witness. In Vu v New South Wales Crime Commission, McColl JA (Meagher and Emmett JJA agreeing) said at [83]-[85]: "83 While demonstrating that other evidence could have been, but was not, called may properly be taken into account in determining whether a party has proved its case to the requisite standard, both the circumstances in which that may be done and the way in which the absence of evidence may be taken into account are confined by known and accepted principles: Australian Securities and Investments Commission v Hellicar (at [165]) per the plurality. 84 Here the appellant seeks to weaken the cogency of the respondent's case by invoking the rule in Jones v Dunkel. However, that rule does not apply whenever a potential witness is not called. Rather, it applies 'where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, [so that] the circumstance that the [party] disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference': Jones v Dunkel (at 312) per Menzies J; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 (at [26]) per Gaudron ACJ, Gummow, Kirby and Hayne JJ; see also Manly Council v Byrne [2004] NSWCA 123 (at [54]) per Campbell J (as his Honour then was), Beazley JA and Pearlman AJA agreeing. 85 Further, while the rule in Jones v Dunkel authorises, but does not require, a tribunal of fact to infer that the evidence of an absent witness, if called, would not have assisted the party who failed to call that witness (Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 (at [91]) per Campbell JA (Basten JA and Sackar J agreeing)), it does not entitle a court to speculate about 'what other evidence might possibly have been led' (Australian Securities and Investments Commission v Hellicar (at [165] per the plurality) nor 'does [it] enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to [the] party' who fails to call the witness: Australian Securities and Investments Commission v Hellicar (at [232]) per Heydon J; see also Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 (at [64]) per Heydon, Crennan and Bell JJ."
The false representation as pleaded by the Plaintiff is not supported by the evidence adduced in the Plaintiff's case. The Plaintiff's own account does not support the pleaded claim. The evidence of Ms Williamson does not support the pleaded claim either. The Plaintiff has failed to adduce evidence on a critical issue from a witness who is said to have been present during the conversation in question. Whichever way the evidence of Ms Williamson is viewed, it does not assist the Plaintiff in these proceedings.
These conclusions give rise to a fundamental difficulty in the Plaintiff's claim. On their own, they operate against a verdict in favour of the Plaintiff, even if the evidence of himself and Ms Williamson was accepted.
There are further and more fundamental difficulties for the Plaintiff as well. I accept the Defendant's submission that there is no evidence to establish that either the pleaded representation, or the statement alleged by the Plaintiff in paragraph 10 of his affidavit (see [53] above), was false. There is no evidence of the reasons why the vendor of "Reevesdale" was in fact selling the property for the price in question as at April to July 2007.
There is no basis in the evidence for the Court to draw an inference that "Reevesdale" was being sold in mid-2007 because of the quarry development proposal, or that this aspect affected the determination of the sale price. This constitutes a further fundamental problem in the Plaintiff's claim.
Another difficulty confronted by the Plaintiff is that there is no evidence that Mr Hannan knew or believed that anything he allegedly said to the Plaintiff (on the Plaintiff's version) was false. For the Plaintiff to prove that Mr Hannan knew what he allegedly said was false, it would be necessary for there to be proof that Mr Hannan did not believe that Mrs Cooper believed that she had seen ghosts. It would need to be proved that Mr Hannan knew that the vendor was selling for some other reason, as to which there is no evidence.
It is the case that no complaint or allegation was made by the Plaintiff concerning Mr Hannan's statements before Mr Hannan died on 3 July 2015. The failure of the Plaintiff to complain about Mr Hannan's alleged conduct, at some time prior to his death in July 2015, meant that Mr Hannan's response to the Plaintiff's allegations is not available. The Court must do its best with the evidence as it stands.
There is nothing to suggest that Mr Hannan believed the vendor was selling "Reevesdale" because of the quarry development proposal, and there is no available and proper foundation for an inference to that effect to be drawn. This constitutes a further difficulty for the Plaintiff succeeding in this claim.
The Defendant submitted, as well, that the Court should accept Mr Hannan's account (contained in his affidavits) that the Plaintiff was informed of the quarry development proposal before he purchased "Reevesdale". In this respect, counsel for the Defendant submitted that, at the time when Mr Hannan made his affidavits, he had no reason to lie with the affidavits being made for the purpose of civil proceedings brought by the Plaintiff against his former solicitors. There is force in this submission. It is difficult to understand why Mr Hannan would falsely advance the conversation contained in his affidavits in what was litigation between other parties. Mr Hannan's evidence is supported, as well, by the presence of protest banners in the Bungonia area, as corroborated by the evidence of Ms McGinity, to which reference has already been made.
As stated earlier (at [127]-[130]), I accept the Defendant's submission that the evidence of the Plaintiff in areas of controversy should not be accepted unless it is corroborated by independent objective evidence.
It is not necessary to express conclusions on each of the remaining matters relied upon by counsel for the Defendant in closing submissions concerning the Plaintiff as a witness (T190-194). It is sufficient to observe that those aspects, which have considerable force, fortify the need for caution in approaching, let alone accepting, the evidence of the Plaintiff on critical matters.
I accept the Defendant's submission that, in truth, the Plaintiff did not rely upon anything Mr Hannan had said about "Reevesdale" concerning the reasons for the vendor selling the property (T194-195). The evidence demonstrates that the Plaintiff was an enthusiastic purchaser of the property, with a desire for speed in this respect to obtain a tax advantage. The Plaintiff's communications with his solicitor, Mr Meakes, and his accountant, Mr Fitzsimons, referred to earlier in this judgment, fortify this conclusion.
I am satisfied that the Plaintiff was unconcerned in 2007 about the prospect of any nearby development, and that he proposed to purchase "Reevesdale" for reasons that were not based upon any alleged false representation made by Mr Hannan. Once again, it is notable that the Plaintiff did not complain at all about the quarry development proposal issue until 2009, long after the events in question.
I accept the submission made for the Defendant that the Plaintiff displayed in evidence a tendency to invent explanations for what were otherwise inconvenient facts, including his failure to complain at an earlier time with respect to the quarry development proposal issue.
The reasons which I have expressed so far are fatal to the Plaintiff's claim. However, there is a matter upon which the Defendant relies, which serves to damage the Plaintiff's claim. The affidavit of Mr Reardon, sworn on 2 December 2014 in the proceedings heard by Adamson J, contained a valuation report dated 25 February 2008 (prepared for Rabobank) which placed a then value of $2 million on "Reevesdale". A further valuation of "Reevesdale" by Mr Reardon as at 25 August 2009 placed a value of $1.8 million on the property and a later valuation as at 7 February 2012 valued "Reevesdale" at $1,750,000.00, with a forced sale value of $1,550,000.00.
The Plaintiff did not cross-examine Mr Reardon or seek to challenge these valuations. In these circumstances, and there being no good reason to otherwise question Mr Reardon's valuations, the appropriate finding is that as at 24 July 2007, "Reevesdale" was worth at least the amount of money that the Plaintiff paid for it, and probably significantly more, as demonstrated by the valuations carried out by Mr Reardon. This aspect on its own undermines entirely the Plaintiff's claim, applying the principles in Potts v Miller and Wardley referred to earlier.
Having regard to this evidence, the losses sustained by the Plaintiff by reason of the sale of the Paddington property in 2009 and the forced sale of "Reevesdale" in 2013, were not in any sense caused by anything said or not said to the Plaintiff by Mr Hannan. For this reason, as well, the Plaintiff's claim should fail.
Counsel for the Defendant submitted that the true reason why the Plaintiff confronted difficulties in 2009 and again in 2013, with respect to the Paddington property and "Reevesdale", related to the effect of the global financial crisis and the Plaintiff's own fanciful expectations of income cash flow as represented to Rabobank, together with the prospect that the Plaintiff's health difficulties complicated his position as well after 2010 (T200-202).
Although it is not necessary to determine this issue for the purpose of resolving the Plaintiff's claim for damages, I am satisfied that the evidence reveals the reasons for the Plaintiff's financial difficulties are those submitted for the Defendant. The Plaintiff had made unduly optimistic projections of cash flow in his application to Rabobank in 2007 and was met in the following months (as were many others in the community) by the effects of the global financial crisis. Added to this were the health difficulties which the Plaintiff experienced in and after 2010, which further complicated his position. The reasons for the Plaintiff's financial difficulties, and the need to sell the Paddington property and later "Reevesdale", flowed from these circumstances. The Plaintiff has failed to demonstrate that any financial loss which he suffered related back in any way to the words or conduct of Mr Hannan in 2007.
These conclusions make it strictly unnecessary to say anything more concerning the evidence of Mr Fitzsimons upon which the Plaintiff relies as to quantum of damages. I have already expressed some criticisms and concerns about Mr Fitzsimons' evidence (see [134] above). If that point had been reached, there is a solid foundation for a conclusion that Mr Fitzsimons' evidence would require close scrutiny given his involvement for a number of years as the Plaintiff's accountant, and his stubborn resistance at the hearing before me to accept the concession which he made whilst under cross-examination at the hearing before Adamson J in 2015. Mr Fitzsimons gave the impression of being an advocate for the Plaintiff, rather than a disinterested expert witness doing his best to assist the Court in a detached fashion. However, given the conclusions which I have otherwise reached, it is unnecessary to say anything further with respect to this aspect of the case.
The Defendant submitted finally that, even if the Plaintiff had made good all other aspects of his claim (and he has not), he had failed to mitigate his loss by not selling "Reevesdale" or the Paddington property in September 2007 by which time, on his own evidence, he was aware of the quarry development proposal.
It is unnecessary to address this submission any further, apart from observing that this would have constituted yet another hurdle in the path of the Plaintiff, if he had managed to clear earlier hurdles in the proceedings (which he has not).

Conclusion and Costs

The Plaintiff has failed to establish his cause of action against the Defendant. He has fallen far short in this respect on virtually every contested issue in the proceedings.
Accordingly, there will be a verdict for the Defendant in the proceedings.
The usual rule should apply and costs should follow the event. An order should be made that the Plaintiff pay the Defendant's costs of the proceedings.
At the conclusion of his submissions, counsel for the Defendant indicated that he would seek to be heard on costs after judgment (T203). If the Defendant seeks a special costs order other than costs being calculated on the ordinary basis, I will allow that application to be made in writing and will, in due course, determine that application on written submissions without the need for a further hearing.
I make the following orders: 1. I give judgment for the Defendant against the Plaintiff; 2. unless a written application (not exceeding five pages) is made to my Associate by email (and served on the Plaintiff) on or before 15 January 2019 for a different costs order, the Court orders the Plaintiff to pay the Defendant's costs of the proceedings; 3. if the Defendant makes written application for a special costs order, the Plaintiff may furnish a written submission in reply (not exceeding five pages) by email to my Associate (and served on the Defendant) on or before 25 January 2019; 4. if application for a special costs order is made by the Defendant, the Court will determine the application on the papers by reference to the written submissions of the parties.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2018

(2007) 159 LGERA 232

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