Mirvac Queensland Pty Ltd v Tyan Pty Ltd
[2010] QSC 333
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- Notable Unreported Decision
- Mirvac Queensland Pty Ltd v Tyan Pty Ltd[2010] QSC 333
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Mirvac Queensland Pty Ltd v Tyan Pty Ltd[2010] QSC 333
Mirvac Queensland Pty Ltd v Tyan Pty Ltd[2010] QSC 333
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Trial |
ORIGINATING COURT: | |
DELIVERED ON: | 8 September 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10-11 June and 9 August 2010 |
JUDGE: | McMurdo J |
ORDER: |
|
CATCHWORDS: | TRADE AND COMMERCE – TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – MISLEADING OR DECEPTIVE CONDUCT GENERALLY – GENERALLY – where the plaintiff agreed to sell to the defendant an apartment in a building to be constructed on the riverfront – where the defendant alleges that the plaintiff made certain representations as to the view to be expected from the apartment – whether there were statements made in contravention of s 52 of the Trade Practices Act 1974 (Cth). Trade Practices Act 1974 (Cth) ss 52, 82, 87 Watson v Foxman & Ors (1995) 49 NSWLR 315 |
COUNSEL: | M D Martin for the plaintiff R G Bain with Ms Martin for the defendant |
SOLICITORS: | ClarkeKann Lawyers for the plaintiff Williamson and Associates Solicitors for the defendant |
[1] In 2007 the plaintiff (“Mirvac”) contracted to sell to the defendant an apartment in a building to be constructed on the river front at Tennyson. The building, together with an adjacent building within this first stage of Mirvac’s development of this site, was completed by about the end of April 2009. The defendant refused to complete upon the basis that the contract had been induced by conduct in contravention of Part V of the Trade Practices Act 1974 (Cth).
[2] Mirvac seeks specific performance of that contract, the enforceability of which is challenged only by the defendant’s case that it should be avoided by an order under s 87 of the Act. The defendant also counterclaims for damages under s 82.
[3] The defendant is a company controlled by Dr Tavakol, an anaesthetist, and Mrs Tavakol, a social worker. The defendant’s case is that, through them, it was induced by representations as to the river views to be expected from the apartment and the extent to which those views would be affected by mangroves and other vegetation. The defendant company acts as a trustee of their family trust and it proposed to rent the apartment for at least many years from the completion of its purchase. It was argued that I should infer that the extent of the vegetation between the apartment as built and the river was so extensive that its value was less than the agreed price, which was $1,350,000. However, there was no evidence from a valuer.
[4] Mirvac denies that there was any conduct in contravention of the Act. It admits that its sales representative did say things to the Tavakols, or at least to Dr Tavakol to the effect that there would be some vegetation between the apartment and the river such that the apartment would enjoy “filtered” views. But it denies that it represented that the views would be any better than that. Ultimately the factual contest is between, on the one hand, the evidence of Dr and Mrs Tavakol, together with evidence from Mr Tavakol’s brother and, on the other hand, Mirvac’s sales representative, Mr Mills, as to what was said on three occasions in July 2007 at or near Mirvac’s facility described as its display centre on the site at Tennyson.
[5] On 16 July 2007, Dr Tavakol went to the display centre and met Mr Mills. Dr Tavakol’s evidence was that he told Mr Mills he was interested in an apartment on the lower floors, which would have eye level views of the river from a sitting position inside the apartment. Mr Mills, he said, recommended the subject apartment, in the building called “Softstone”, because being closest to the eastern end of the site, it would have “the best view … because it’s situated such that you will look at the bend of the river and look along the length of the river”. Dr Tavakol said he asked Mr Mills what view could be expected from this apartment, which would be on the second floor and Mr Mills said:
Where we are standing here is representative of a typical view you would get from the first floor apartment. Your apartment being [on] the second floor will be above us. However, being apartment 3302 … at that easterly position, looking at the bend of the river, your views would be better.
[6] They were then standing in the main hall of the display centre which was constructed near the river bank several hundred metres upstream from the site of the proposed apartment. It is common ground that there was little vegetation impeding a view of the river from the display centre: there were a few trees and no mangroves of any significance. Dr Tavakol recalls that when looking at the various floor plans he remarked to Mr Mills that he liked this apartment because the river could be seen from every room except for the second and third bedrooms.
[7] In the same conversation in the display centre, Dr Tavakol says that he noticed that the subject apartment was more expensive on a per square metre basis than a nearby apartment and that this was explained by Mr Mills by saying that the subject apartment had a superior position. Mr Mills is also said to have told him that the apartments were “quite unique” in that Mirvac had obtained planning permission to construct the building within 20 metres of the river.
[8] Dr Tavakol told Mr Mills that he wanted to come back to the display centre with Mrs Tavakol and he asked whether the apartment could be withheld from sale until that occurred. Mr Mills said that he would have to pay a holding deposit of $5,000, which would be refunded if the Tavakols did not enter into a contract. So Dr Tavakol returned later in the day with a cheque for $5,000. At the same meeting, as is common ground, Dr Tavakol did sign a contract of sale which identified the purchaser as the “Tavakol Investment Trust” and Mr Mills gave Dr Tavakol brochures which contained photographs and artists’ impressions of the proposed development. In particular, one brochure included an image representing what would be the appearance of the Softstone building and the adjoining building, called “Lushington”, as viewed from the river. Described as an artist’s impression, this had apparently been produced by superimposing a photograph of the river and the vegetation along the bank upon an image of the proposed buildings. If considered alone, it represented clearly the extent of the vegetation which might be expected between the buildings and the river.
[9] Dr and Mrs Tavakol said that on that evening they looked at the brochures and noticed that according to that image showing the buildings from the river, the vegetation would affect views from some apartments. Dr Tavakol’s evidence was that they noticed large trees in front of their apartment, making it difficult to identify their bedroom balcony in this image.
[10] They said that when they went to the display centre on 18 July, they raised their concern about this with Mr Mills. Dr Tavakol said that he opened the brochure saying to Mr Mills that they were concerned by the image showing “that our apartment’s views are blocked with the trees in front of it”. He said that Mr Mills’ response was to say “that’s just an artist’s impression”. Dr Tavakol said that he wanted to go to the site of the proposed building, where some scaffolding had been erected, so that he could assess the likely view. Mr Mills replied that for safety reasons that part of the site was by then closed because of works on the site, but he suggested that they go outside the display centre to “get some sort of feeling about how it is outside”. They walked about 25 metres towards the construction site from the display centre, whilst Mr Mills described where other parts of the development, such as the tennis centre, would be located. As they did this, Dr Tavakol said that he saw trees or mangroves “now blocking sight of the river” which made him ask Mr Mills “So are you going to clear these trees? What’s going to happen with these?”. He said that Mr Mills replied that Mirvac had “special permission to clear and remove the small diameter trees” and that the “bigger diameter ones [for which he gave a measurement which Dr Tavakol could not recall] are going to be trimmed and cut”. Dr Tavakol asked him “what kind of view that will give us then?” to which Mr Mills replied “At [worst], you will have a through tree view”.
[11] In the same conversation, according to Dr Tavakol, Mr Mills explained that there would be a boardwalk constructed between the buildings and the river and that the subject apartment would be “looking at the river over the boardwalk”. Dr Tavakol recalls Mr Mills then saying that the purchasers of apartments on the first floor, below the subject apartment, must have been satisfied with the views to be enjoyed from the river because they had agreed to pay higher prices than that for this apartment. He added that being on a higher level and with the apartment “looking at the bend of the river and [along] the length of the river, you should have better views than them”.
[12] The three then returned to the display centre, where Dr Tavakol said that he again raised with Mr Mills the matter of views. He asked him what he had meant by the expression “through trees” because he was concerned that not all of the mangroves would be removed. His evidence was that he then went to the bedroom section of the display centre, because this had the least favourable view from that building, and asked Mr Mills whether the view from that location was what he had meant by through tree views and whether it was the worst view they could expect. He claims that Mr Mills responded “yes, however, bear in mind that you’re going to be above this level … you’re going to be above it and also you’re looking at the bend of the river and along the length of the river so you should have [a] better view”. He added that in Mr Mills’s presence, he then turned Mrs Tavakol and said that if this was the worst view they would have, “anything better than this would be great”.
[13] A recent photograph from that location in the display centre was tendered by the defendant, without objection, as indicating the extent of the view in July 2005. There were also tendered photographs showing the view from the apartment as it was when the contract was due to settle. At the commencement of the hearing I had the benefit of a view from the apartment. As is common ground, much more of the river can be seen from the display centre than from the apartment. The river is visible from the apartment but the overall impression is that much of it is obscured by trees and bushes. The expression “through tree view”, general as it is, might be apt for either the display centre or the apartment. But the difference between the views is enough for Mirvac to concede that if Mr Mills represented that the views would be as extensive as those from the display centre, that was misleading and deceptive because there could have been no reasonable basis for that prediction.
[14] Mrs Tavakol’s evidence was consistent with her husband’s account. She had noticed in the brochures the image showing trees and mangroves in front of the buildings and she recalled her husband showing the picture to Mr Mills who responded that it was “just an artist’s impression”. She also recalled the conversation with Mr Mills in their walk outside the display centre and the representations by Mr Mills when they were back inside the centre.
[15] At the end of this meeting the contract of sale was signed by Mrs Tavakol for the defendant company and its name was substituted as the purchaser.
[16] A few days later, Dr Tavakol returned to the site, this time with his brother. They spoke to Mr Mills in whose presence, Dr Tavakol said, he told his brother that the view from where they were then standing in the display centre was the worst view that Mr Mills had said they could expect from the apartment. Mr Mills is said to have made no comment at that point.
[17] Mr Mills was and is a sales consultant employed by Mirvac. He had some recollection of the transaction and of meeting the Tavakols but unsurprisingly he does recall precisely what was said. He remembered meeting Dr Tavakol after most of the 115 apartments in these two buildings had been sold. There had been a strong demand and only about six or seven apartments remained for sale when Dr Tavakol arrived. He remembered that Dr Tavakol said something to the effect that he was disappointed at having not attended upon the day when the apartments were released for sale.
[18] Mr Mills said that in the display centre he showed Dr Tavakol floor plans, representations of finishes and a scale model of this first stage of the development. There is an issue in this case as to what was that model, to which I will return.
[19] Mr Mills had no recollection of the conversation within the display centre on that morning, insofar as views were concerned, other than that “we talked about views and that’s where we used the model a lot as a means of describing what your expectation should be”. He agreed that he and Dr Tavakol walked outside the display centre that morning and that they then discussed the impact the trees would have on views. Mr Mills gave this evidence in chief:
I explained that we’d approval to selectively clear and trim mangroves and trees along the water line and that the body corporate had an approval to be able to maintain them at a certain trim level. From memory, it was just lateral branches and smaller trees up to about four centimetres in diameter.
He said that he described the type of view to be expected as “filtered views or through-tree views”.
[20] Mr Mills recalled Dr Tavakol returning a couple of days later with Mrs Tavakol but he could not recall the conversation with them. He said he had a “vague recollection of being in the display bedroom in the display [centre]” with the Tavakols. He was asked whether he could recall any questions about the expected view when the Tavakols were at the display centre, to which he replied:
I can’t recall the question, but I did use – in answer to any queries they had on filtered views I would try to explain see-through views as per the model or pointing down the river just to explain, which I guess at the time I thought may have been obvious.
However, Mr Mills was adamant that at no stage did he tell Dr Tavakol or Mrs Tavakol that the views they could expect from their apartment would be at least as good as those immediately in front of the display centre.
[21] He recalled Dr Tavakol returning at some time to the display centre with his brother but he could not recall any conversation in his presence about views from the apartment.
[22] Mr Mills has no recollection of discussing the brochure with the Tavakols and in particular the image showing the vegetation between the buildings and the river. He agreed that if there was a discussion as to the reliability of this image as a representation of the likely views, he is likely to have said something to the effect that it was an indication of the likely outcome and “not a guarantee”.
[23] In cross-examination he was taken to a manual, which had been provided to Mirvac’s sales representatives as part of their training for the project. The defendant’s case sought to make something of references in this document to the amenity of the site from its proximity to the river. However, the most significant part of the manual is this section dealing with mangroves:
1.9.11Mangroves
Removal of some mangroves will be necessary to facilitate infrastructure, stabilisation and management works. The key components of the proposed mangrove management plan are as follows:
a)Selected mangroves at the eastern end of the site in front of Softstone and Lushington will be selectively trimmed for construction, maintenance and safety purposes.
b)Canopy lifting is proposed along sections of the river frontage to allow users of the parkland to interact with the river.
c)An ongoing program of mangrove management will also be implemented in consultation with Brisbane City Council and the Body Corporate Managers.
d)It is anticipated that the existing mangrove canopy will fitter views up to approximately level 4 in Softstone and Lushington.
Approval in principle for the points b-d (above) have been received – subject to the submission and approval of a formal application. Final approval is anticipated on or about August 2007.
The word “fitter” was apparently intended to “filter”.
This part of the sales manual adds to the likelihood that, as Mr Mills testified, he did say something to the Tavakols, or at least Dr Tavakol, about proposed work to the mangroves and to the likely views being “filtered” or “through tree”. It is difficult to see that any representation of the likely effects of this proposed work on the mangroves was depicted in the image in the brochure, because a photograph of the river and the mangroves appears to have been used. So if the Tavakols queried Mr Mills about this image, it is quite likely that he made some comment to the effect that it was not a precise representation of what would exist and that they might expect less vegetation than the image depicted. And in cross-examination Mr Mills agreed that “to a certain extent” it was going to be necessary to “deal with the mangroves in order to obtain views consistently with what [he was] generally presenting about this development and its riverside amenity”.
[24] Mr Mills agreed that every prospective purchaser asked about the likely views and that views were a “major part” of this development. He said that he usually used the expression filtered views, rather than through tree views, although unremarkably, he saw no difference between the two expressions. Mr Mills denied that he made any representation as to views to be expected “up and down the river” (as distinct from in front of the apartment) because he said that he had no basis for doing so. He was adamant that at no stage did he endeavour to represent that the views from the Softstone building would be equivalent to those from the display centre.
[25] I come then to the issue about the model. Mirvac tendered photographs of what it says was the model then in the display centre. That model itself was not tendered but it was in the courtroom and the witnesses were directed to it. Dr and Mrs Tavakol were adamant that this was not the model which they saw in July 2007. They tendered photographs of another model, which they had taken at the display centre in the week or so prior to the commencement of this trial. That model shows the buildings in later stages of the development and the Softstone and Lushington buildings only in outline. Clearly, this one was not the model in the display centre in July 2007. But the Tavakols say that it is like the model which they saw because it depicts relatively less vegetation in front of the Softstone building. The model which Mirvac says that it used shows extensive vegetation between the Softstone and Lushington buildings and the river which would substantially affect views from the subject apartment. The outcome according to this model would not have been materially different from the actual outcome.
[26] Mr Mills believed that the model used in July 2007 was that which was in the courtroom. But there is further evidence to that effect. Mirvac called an employee, Ms Madsen, who was then the development manager of this project. She recalled that the model in court was the one in the display centre in July 2007. She gave evidence of the manufacture and delivery of the model not long before the release of the apartments in stage one in mid-2007. Documents passing between Mirvac and the firm which made the model were tendered in her cross-examination, during which there was some exploration of whether Mirvac had disclosed all of the documents presently available in respect of this issue. However, I would not accept that Mirvac has withheld documents. Those which are in evidence show that a model was requested by Mirvac in March 2007 and that it was supplied at an initial price of $52,580. There is an invoice from the model maker dated 12 June 2007, which describes the job as then completed. There is a further invoice dated 20 June 2007 for $792 for variations or additions to that model. There are handwritten notes on that invoice, written by Mr Blake from the model maker, referring to alterations to the model by reference to, amongst other things, “trees”. Ms Madsen explained that when she saw the model as originally produced, she did not think it accurately represented the likely vegetation and that the model was changed to make the vegetation “smaller”. Apparently the model the subject of that evidence was the first model constructed for the development. Clearly it was the first model constructed by this model maker, and there is no suggestion that Mirvac had had someone else produce another model by June 2007. So the defendant’s case seemed to involve the suggestion that after July 2007, Mirvac caused to be constructed another model, showing only the buildings in stage one, which became the one in the courtroom. As to why Mirvac would do that, having sold the apartments in this stage one, was not explained in the defendant’s argument except by the suggestion that it was to produce a model of the development as it had been actually constructed. There is no reason why Mirvac would have done that, especially having regard to the cost of the exercise. I do not accept that the model which was in the courtroom was something which Mirvac had caused to be constructed in order to succeed in litigation such as the present, and I do not understand that this was suggested to Ms Madsen. Overall the evidence was compelling in demonstrating that there was but one model for this first stage and that it was the model which was in the courtroom and which was in evidence by photographs tendered by Mirvac.
[27] The model is significant in several respects. The first is that it makes it less likely that Mr Mills represented that the views to be expected were at least as good as those from the display centre. Such a statement would have been contradicted by the model. A prospective purchaser may not have noticed that contradiction. But the fact that it would be apparent if the model was studied by a purchaser makes it improbable that someone in Mr Mills’s position would make such a representation.
[28] Secondly, the model provided an indication of what might be involved in filtered or through tree views. It depicted quite thick and high vegetation, but nevertheless something which would not completely block a view of the river. As I have said, the model depicted something not materially different from the actual outcome on completion of these buildings.
[29] Thirdly, the fact that Dr and Mrs Tavakol were adamant that this was not the model is something which bears upon their reliability. Dr Tavakol claimed that he was “120% sure” that the model in the courtroom was not the one which he had seen. Mrs Tavakol said that it did not resemble the model which she had seen because “there’s a lot of mangroves in front of this one” and that she was “absolutely” or “100%” sure about that.
[30] There are inconsistencies between the various pleadings of the defendant and their evidence as to precisely what was represented. In the original defence, there was pleaded a representation that the defendant would have superior and unobstructed views of the river and the Indooroopilly Golf Course. That was not the evidence for the defendants and Dr Tavakol was unable to explain the terms of that original pleading. On the other hand, Dr Tavakol’s evidence that Mr Mills told him he would have views along the length of the river was not a matter pleaded in the original defence and counterclaim. These inconsistencies indicate at least the practical difficulty in recalling precise words spoken in a conversation which occurred some years ago. However, as McLelland CJ in Equity said in Watson v Foxman:[1]
Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances.
And I respectfully adopt these further observations made in the same judgment:[2]
In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
[31] I accept that the Tavakols were conscious of the potential impact of the mangroves and other plants upon views and that they raised this concern with Mr Mills. I accept also that they did so by specific reference to the image in the brochure. It is inherently likely that they would be interested in the views, as Mr Mills said was generally the case with prospective purchasers. In turn, I find that Mr Mills represented that there would be work done to the mangroves, as Mirvac’s sales manual had informed its representatives including Mr Mills. Thus I find that Mr Mills represented that the density of the vegetation in front of the Softstone building, as it was apparent on site in July 2007 or as it was depicted in the brochure, would be reduced somewhat by selective thinning or cutting back of mangroves. But if this was the extent of the representations made to the Tavakols, Mirvac’s conduct could not be said to have been misleading or deceptive or likely to mislead or deceive. There was a reasonable basis for representations to those effects. The evidence establishes that Mirvac had some approvals from relevant authorities which permitted work to be done to the vegetation.
[32] The representation that there would be filtered or through tree views was not in itself misleading or deceptive. Again, it had a reasonable basis in the existence of a permitted proposal to perform work on the mangroves. And as I have already found, the outcome of the constructed development was one in which the river can be seen through the trees in front of this apartment.
[33] The defendant’s case must go further, and prove that Mr Mills represented to the effect that the views would be at least as good as those from the display centre. Ultimately I am not persuaded that this representation was made. I accept that probably something was said by Mr Mills about views when he was standing in the display centre with the Tavakols or Dr Tavakol alone. And it is conceivable that he said something about the height of the display centre relative to the height of the subject apartment. But I am not persuaded that he said something to the effect that the views of the river would be at least as good as those from the display centre. Possibly, the Tavakols came to expect something like those views. If so, that was because they had in mind what they had seen from the display centre, not having been down to the actual place where the Softstone building was to be built. But that is not to say that their expectation came from what Mr Mills had said.
[34] The principal reasons for my conclusion are the indicators of the unreliability of the evidence of the Tavakols to which I have referred and what I see as the improbability that Mr Mills would make such a statement in the circumstances of his instructions (by the sales manual) about the mangroves and the quite different representations about mangroves within the model and the brochure. As to those instructions, the Tavakols agree that Mr Mills said something to the effect that the mangroves would be trimmed with some smaller plants removed, rather than that there would be some complete or almost complete removal of the vegetation, which is what would have been necessary to make the landscape in front of the apartment as it was immediately in front of the display centre.
[35] The evidence of Mr Mills was criticised for being self-interested and vague. He is not an entirely disinterested witness, because he still works for Mirvac. He earned a commission of about $3,000 on this sale, which he says is not dependent upon Mirvac’s success in this case. But the fact that he did not purport to remember particular exchanges in his meetings with the Tavakols makes his evidence overall more persuasive, for it would be surprising if he could have been more specific in his recollection. What he was able to explain was why he would not have made the critical representation (the comparison with the view from the display centre).
[36] It follows that the defendant has failed to prove any contravention of the Trade Practices Act, which was its sole basis for resisting specific performance and for claiming damages. But it is necessary that I say something as to some other factual issues, should they become relevant.
[37] The first is whether the contract was relevantly caused by the conduct which is alleged. Little can be said as to that question because of my finding that there was no misleading conduct. But it should be noted that Mirvac’s submission that the alleged representations of 18 July 2007 were immaterial, because the contract had been signed by then, could not have been accepted. Dr Tavakol signed the contract document on 16 July. As noted already, the purchaser was described as the trust. Mrs Tavakol signed the contract on 18 July, when at the same time the form of contract was changed to show the defendant as the purchaser. There was no concluded contract until the document was signed by Mirvac on 23 July 2007 and then there was the cooling off period. Had I been persuaded to accept the evidence of the Tavakols in its entirety, I would have found that the Tavakols would have withdrawn before 23 July or at least before the expiry of the cooling off period.
[38] It was submitted for Mirvac that there was no evidence from the Tavakols which addressed the relevant question, which was said to be what would have occurred had the alleged misleading representations not been made. It was submitted that instead there was simply evidence from Dr Tavakol that he would not have caused the defendant to purchase the unit if he had known that the view would be that which he saw when the apartment was completed. However, that submission seemed to me to wrongly quarantine that piece of evidence from the evidence of the Tavakols as a whole. For example, there was also evidence from Dr Tavakol that after Mr Mills had made the critical representation, he turned to his wife and said that “anything better than this would be great” and that “we [were] happy with that and then we proceed”.
[39] There was also argument as to whether a case for an order relieving the defendant from performance of the contract was warranted, assuming that a contravention of s 52 was proved. Had I found such contravention, it would have been necessary for the defendant to prove that the defendant has suffered, or is likely to suffer, loss or damage by that conduct: s 87(1). The defendant pleaded that it had suffered loss and damage as follows. There was a claim for the interest paid to its bank for the provision of the bank guarantee which constituted the deposit, which was in a total of $8,100. There was a claim for stamp duty paid on that bank guarantee of $440 and other fees and charges in relation to the bank guarantee of $30. There was also a claim for legal fees paid in respect of the contract of $975. In each case, the incurring of the expense was not disputed. But each of them represents a loss to the defendant by the fact that an outlay has been incurred for a transaction which, if the contract were terminated, would not proceed. I would have been satisfied that each of those sums should have been awarded as damages under s 82, if the contract was to be terminated under s 87. But they were not instances of loss or damage which would have warranted an order for termination of the contract because the termination of the contract would not avoid such losses.
[40] Accordingly, Mirvac was right to submit that there was nothing pleaded by the defendant as to actual or potential loss or damage, so as to engage s 87. Nor was there any valuation evidence which established some difference between the current value of the apartment and the agreed price. But Mirvac appeared to accept within its own submissions that the current market value is less than the price.[3] On that basis, I would have been prepared to find that there was a sufficient potential for loss from the alleged misconduct, which would have enlivened the discretion under s 87.
[41] The result is that there will be a decree of specific performance of the contract of sale between the parties. The counterclaim will be dismissed. I will hear the parties as to other orders, including costs.