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Ducksbury v Cairns Plywoods Pty Ltd[2024] QSC 296

Ducksbury v Cairns Plywoods Pty Ltd[2024] QSC 296

SUPREME COURT OF QUEENSLAND

CITATION:

Ducksbury v Cairns Plywoods Pty Ltd [2024] QSC 296

PARTIES:

STEPHEN JOHN DUCKSBURY and

KERAN JANE THOMAS

(first plaintiff)

and

COLLEEN LOUISE YOUNG and

TARA LEE HAYES in their capacity as personal representatives of the late EDWARD JOSEPH HAYES and COLLEEN LOUISE YOUNG

(second plaintiff)

v

CAIRNS PLYWOODS PTY LTD ACN 009 663 254

(defendant)

FILE NO/S:

575 of 2021

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

28 November 2024

DELIVERED AT:

Cairns

HEARING DATES:

8, 9, 10, 11 July 2024 and 21, 22 August 2024

JUDGE:

Henry J

ORDERS:

  1. 1.Judgment for the plaintiffs (and their represented parties).
  2. 2.The first defendant is restrained from:
  1. (a)developing or using for any purpose other than parkland or vacant grassland, that portion of Stage 10B of the Yungaburra Village Estate which was denoted as ‘Park’ in the 24 July 2009 approval granted by the Planning and Environment Court on 10 December 2015 in Proceeding 195 of 2015 (“the Stage 10 Park”);
  2. (b)transferring or disposing of its interest in the Stage 10 Park other than by transfer to the Tablelands Regional Council for the purpose of dedication of parkland (having first obtained any necessary court orders to legally do so);

(except with the written agreement of the owners from time to time of lots 119, 120, 121, 122, and 124 on SP 252415).’

  1. 3.The parties have liberty to apply at 10am 13 December 2024 (having given two working days’ notice in writing) for the inclusion of any additional appropriate terms of exception within the bracketed terms of the injunction in order 2.
  2. 4.I will hear the parties as to costs at 10am 13 December 2024.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATION – MISLEADING OR DECEPTIVE CONDUCT GENERALLY – where the defendant was a developer marketing its real estate development in Yungaburra – where the plaintiffs were buyers of the developer’s advertised lots on Newland Street in Yungaburra – where the developer represented to the buyers the parkland behind the Newland Street lots was not to be developed – where the developer actively planned the development of the parkland into residential land while continuing to represent the contrary to the buyers – whether the developer’s representations to the buyers were misleading and deceptive – whether the buyers relied on the developer’s representations to their detriment

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – INJUNCTIONS – where the buyers filed a claim against the developer seeking an injunction of the parkland development or substantial damages – where the primary relief sought by the buyers is an injunction which precludes the developer from developing the parkland into residential lots, requiring it not to be used other than as parkland or vacant grassland and preventing it being of disposed of other than by transfer to Council  – where the buyers only seek damages in the event the court declines to grant the injunction – whether the appropriate relief is an injunction or damages – whether if any exemplary damages should be awarded

TORTS – MISCELLANEOUS TORTS – DECEIT – REMEDIES, PROCEDURE AND OTHER MATTERS – where the buyers filed a claim against the developer under the tort of deceit – whether the developer’s representations to the buyers were fraudulent under the tort of deceit

DEEDS – DEED OF RELEASE – GENERAL WORDS OF RELEASE – where the buyers entered into a Deed of Release with the developer’s real estate agent – whether the buyers’ entry into a Deed of Release with the developer’s real estate agents extinguishes the developer’s liability

Australian Consumer Law, s 18, s 30, s 232, s 236

Civil Liability Act 2003 (Qld)

Competition and Consumer Act 2010 (Cth), s 80, s 87CC, s 87CD, s 87CG, 139B, sch 2

Law Reform Act 1995 (Qld)

Uniform Civil Procedure Rules 1999 (Qld) r 75

Wrong Act 1958 (Vic) s 24AA

Associated Retailers Ltd v Toys Unlimited Pty Ltd [2011] VSC 297, explained

Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, cited

Avis & Anor v Mark Bain Constructions Pty Ltd [2011] QSC 80, explained

Baxter v Obacelo Pty Ltd (2001) 205 CLR 635, cited

Bennett v Elysium Noosa (2012) 202 FCR 72, cited

Briginshaw v Briginshaw (1938) 60 CLR 336, cited

Brinsmead v Harrison (1872) LR 7 CP 547, cited

Commonwealth v Amann Aviation Pty Ltd  (1991) 174 CLR 64, cited

Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, cited

Derry v Peek (1889) 14 AC 337, explained

Duck v Mayeu [1892] 2 QB 511, cited

Eckford v Six Mile Creek Pty Ltd (No 2) [2019] FCA 1307, cited

Gray v Motor Accident Commission (1998) 196 CLR 1, cited

Harplex Pty Ltd v Konstandellos (2018) 54 VR 174, cited

ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248, explained

Lavan v Toppi (2015) 254 CLR 459, cited

Lawrence v Fen Tigers Ltd [2014] AC 822, cited

Lewis v Australian Capital Territory (2020) 271 CLR 192, cited

Magill v Magill (2006) 226 CLR 551, applied

Mark Bain Constructions Pty Ltd v Avis; Mark Bain Constructions Pty Ltd v Barnscape Pty Ltd [2012] QCA 100, explained

Morgan v Trevor Edward and Karen Margaret Howell t/a HHH Contractors & Anor [2011] QSC 165, cited

Musca v Astle Corporation 80 ALR 251, cited

Mullens v Miller (1882) 22 Ch Div 194, cited

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, cited

Potts v Miller (1940) 64 CLR 282, cited

Sarl v Gill (2021) 387 ALR 494, explained

Smethurst v Commissioner of Police (2020) 272 CLR 177, cited

Suncoast Pastoral Company Pty Ltd v Coburg AG (No 2) Pty Ltd & Ors [2012] QSC 157, cited

Thompson v Australian Capital Television (1996) 186 CLR 574, cited

COUNSEL:

R R Ivessa for the plaintiffs

M A Jonsson KC for the defendant

SOLICITORS:

Miller Harris Lawyers for the plaintiffs

Marino Lawyers for the defendant

  1. [1]
    A developer marketing its real estate development in Yungaburra, on the Atherton Tablelands, represented Yungaburra was a pretty and well-located village to live in.  That was true.  It also represented it had no plans to develop parkland behind the development’s residential lots for sale in Newland Street.  That was false.  
  2. [2]
    The local Council, to which the parkland was supposed to revert under the development’s approval, made the odd decision it did not want the parkland and preferred for the developer to own and develop it into more residential lots.  The developer jumped at this unheralded future opportunity to make more money but could not resist the temptation to make more money out of the existing lots too.  
  3. [3]
    While actively planning behind the scenes to turn the parkland behind the Newland St lots into more residential development the developer continued to publicly market those lots for sale by pretending they would back onto and overlook parkland.  That was misleading, deceptive and deceitful conduct.  It was engaged in to make more money from sales of those lots than would be paid if the truth were known.  To make matters worse, even after the purchases occurred, the developer still did not reveal its actual plans.  It sat back quietly, while some duped buyers incurred the additional expense of building houses specifically designed to facilitate a view over the parkland which the developer planned to transform into a view over more house lots.
  4. [4]
    After they belatedly learned the truth, two of the buyers, representing themselves and representing three other buyers,[1] filed a claim against the developer seeking either an injunction or very substantial damages.  
  5. [5]
    The only defendant at the trial of the claim was the first defendant, the developer, Cairns Plywoods Pty Ltd.  A second defendant, the developer’s marketing real estate agents, Yungaburra-Tinaroo Realty Pty Ltd, was no longer a defendant by the trial.[2]  Indeed, a settlement of the claim against Yungaburra-Tinaroo Realty was relied upon by the developer in defence of the claim. 
  6. [6]
    While the developer did not concede liability at trial, putting much in issue, the buyers’ case on liability was very strong.  The more difficult aspect of the case is determining the appropriate form of relief.
  7. [7]
    The issues requiring determination are:
    1. What were the developer’s true plans?
    2. What was represented to the buyers by the developer?
    3. Were the representations misleading and deceptive per the Australian Consumer Law?
    4. Were the representations fraudulent under the tort of deceit?
    5. Did the buyers rely upon the representations to their detriment?
    6. Did some buyers’ entry into a Deed of Release with the developer’s real estate agents extinguish the developer’s liability?
    7. Is the appropriate relief an injunction or damages?
    8. What is the quantum of the damages suffered by the buyers?
    9. What if any exemplary damages should be awarded?

1.What were the developer’s true plans?

Dean Rankine was the developer’s controlling mind

  1. [8]
    Dean Rankine is the director and controlling mind of the developer.  He testified the development of the Newland Street residential lots occurred as part of the developer’s broader sub-divisional development, known as Yungaburra Village Estate.  It had proceeded pursuant to a development approval ordered by the Planning and Environment Court in 2009 and amended in response to a minor modification application in 2015.

The lots were priced and marketed as adjoining attractive parkland

  1. [9]
    The development is on undulating vacant land to the northwest of the site of the old Yungaburra sawmill, which is close to the village centre.  The development involved the creation of residential lots on each side of an area of parkland in which there is a spring and tree-lined creek.  On the Newland St side, behind its seven lots, there is a substantial expanse of open grassland sloping down to a spring and tree-lined creek.  Consistently with the first three laws of real estate – position, position, position  – the Newland St lots were priced for sale at a higher price than lots in the development which did not have such an aspect.
  2. [10]
    The marketing of the Newland St lots depicted and emphasised the valuable parkland aspect which owners of the lots would have.  It asserted the developer had no current plans to develop the parkland.

A different future for the parkland was planned behind the scenes

  1. [11]
    Such marketing reflected the publicly ascertainable position that a condition, attaching to the Council’s development approval of the reconfiguration of the land, designated the parkland behind the Newland St lots as future parkland, to become owned by Council as the development progressed.  However, the true position, from May 2018,  was that the developer was pursuing a quite different future for the land.
  2. [12]
    On Mr Rankine’s account, supplemented by the content of emails, when he delivered a works application to Council on Friday 11 May 2018, a Council officer, Mr Paul Want, asked whether the developer wanted to use the parkland behind the Newland St lots for development.  The explanation for this query was that Council supposedly did not want any more parkland because it already had too much.  It is not apparent whether that was the actual reason for the curious view that Council should forfeit such future public space for the growing village of Yungaburra to the developer.
  3. [13]
    By 12 May 2018, Mr Rankine had arranged for the developer’s design draftsman, Mr Jim Papas, to send a plan to Mr Want, marking the substantial expanse of grassland behind Newland St and asking for confirmation that was the area of change envisaged.  On 14 May 2018, Mr Rankine forwarded the same correspondence to Mr Marino of Marino Lawyers, the developer’s lawyer, seeking his view.
  4. [14]
    Marino Lawyers were instructed to advance the developer’s new plans. They identified a need to change the existing condition 56 of the development approval.  Under that condition the parkland area was dedicated to be provided to Council as part of stage 10 of the development.  It needed to be changed to allow the area of parkland to be reduced by the excision of the substantial expanse of open grassland behind Newland St and permit it to instead be developed into residential lots under what came to be called stage 10B of the development.  
  5. [15]
    Such a change to the existing development approval required an order by the Planning and Environment Court.  An application for that order required prolonged preparation, including liaising with Council and various government concurrence agencies which had been parties to the past application for the development approval.  
  6. [16]
    On 22 May 2018, Mr Marino wrote to Council advising his firm acted for the developer ‘who proposes to make a request for a minor change’ to the development approval.  It described the details of the minor change by annexing a draft unsworn affidavit of Mr Marino.  It attached a copy of an originating application it said the developer ‘intends to file on or after 30 June 2018 with the Planning and Environment Court’.  Similar letters were sent on 22 May 2018 to other concurrence agencies.

There would not need to be public notifications of the application for change of use

  1. [17]
    It is noteworthy that in an email to the developer of 22 May 2018 Mr Marino explained he had talked to Council’s Mr Want that day and Mr Want accepted the change could be implemented through a minor modification application.  Mr Rankine agreed in cross-examination that his company had previously made such applications, and he knew they did not cause public notification.
  2. [18]
    It is also noteworthy a ‘cc’ copy of that email was sent by Mr Marino to a barrister who was evidently briefed to aid in preparing, and who eventually appeared in, the application to the Planning and Environment Court.  An email by Mr Marino to the developer the following day mentioned Mr Marino would soon be discussing the proposed application with the barrister, after which he would ‘advise further’.  That the developer’s solicitor was already engaged in such activity on its behalf well illustrates that from that era the developer was actively pursuing what was necessary to implement its new plans.
  3. [19]
    Council’s lawyers, P & E Law, replied to Marino Lawyers on 30 May 2018 indicating the Council was not then prepared to agree to the proposed change because of some engineering concerns about possible future water and sewerage infrastructure needs.  Nonetheless the letter indicated Council was willing to discuss the issue with the developer in the future, once it had properly determined those infrastructure needs.  
  4. [20]
    On 27 July 2018, Marino Lawyers wrote to Council’s P & E Law, addressing Council’s concerns by reference to flood-line data and the deployment of a protective easement at a specified flood-line level.  With that reassurance, the letter requested Council permit the inclusion of the expanse of open grassland behind Newland St in the developer’s current development.
  5. [21]
    Further communications ensued, including a meeting between the developer and Council’s representatives on 15 August 2018.  After that meeting, on 21 August 2018, the developer’s design draftsman, Mr Papas, provided sewage discharge data and a possible sewer easement route in order to ‘permit Council to resuscitate the reduced park proposal’.

The Council’s initial support for the change was confirmed

  1. [22]
    This was apparently sufficient to assuage the concerns of Council’s engineers.  Council’s officers proceeded to recommend that Council ‘agree in principle to the proposed change’ to condition 56 and delegate to its planning manager ‘the power to negotiate and agree to final orders in this Court matter’.  Council approved this recommendation on 30 August 2018.  
  2. [23]
    When Mr Rankine learned that recommendation was being made, he informed Mr Marino by email, observing, ‘Looks like we will get the park after all’.  That observation confirms the obvious inference the developer thought Council’s support materially heightened the likelihood of the application succeeding.  
  3. [24]
    Marino Lawyers exchanged various revised drawings with the Council’s lawyers, P & E Law, to ensure Council was agreeable, among other things, to the precise configuration of the parkland area below the Newland St lots for residential development.  Council’s agreement was communicated in correspondence of 19 September 2018.
  4. [25]
    This prompted Mr Marino to email Mr Rankine that he would be invoicing the developer for his work to date on the minor modification application.  Mr Marino wrote that he felt a ‘milestone’ had been reached with the receipt of Council’s agreement from its solicitors.  
  5. [26]
    The process of preparing for what was categorised as a minor change of use application to the Court took a long time.  Survey plans were prepared and submitted to Council.  There was some toing and froing to refine plans to Council’s satisfaction for inclusion in the application.  On 21 December 2018, Council’s lawyers, P & E Law, wrote to Marino Lawyers responding to the content of the latest tracked drawing by the developer’s design draftsman Mr Pappas.  The letter confirmed, ‘Council will be supporting an application for change made by you in relation to those drawings’.
  1. [27]
    On 11 January 2019, Marino Lawyers again wrote to Council and the other concurrence agencies enclosing the latest version of the developer’s proposed originating application and Mr Marino’s draft affidavit in support of it, indicating it intended to file the application on or after 15 February 2019.  Also, on 11 January 2019, Mr Marino emailed Mr Rankine informing him the concurrence agencies would have 20 days to advise if they were going to make any submissions to the court.  No such return advice was received from them.

More preparation occurred but it was all ‘plain sailing’

  1. [28]
    Marino Lawyers did further work in preparation for the application.  Time passed. Despite the passage of time there is no evidence to suggest there was any change in the developer’s intentions.  Eventually, on 11 September 2019, Marino Lawyers sent what Mr Marino described as a ‘follow up’ on its correspondence of 11 January 2019.  
  2. [29]
    Marino Lawyers’ letters to Council and the concurrence agencies on 11 September 2019, were styled similarly to those sent on 11 January 2019.  This time the letters advised it was intended to file the application on or after 14 October 2019 and that it was proposed the application would be heard on 8 November 2019.
  3. [30]
    On 14 October 2019, the developer received advice from the Department of State Development, Manufacturing, Infrastructure and Planning that it did not object to the proposed application.  While the developer’s counsel emphasised that the attitude of concurrence agencies was potentially relevant to the success of the application, no evidence was adduced to suggest the developer or its lawyers had identified any reason for pessimism about their likely attitude.  To the contrary, on 21 February 2019, in an email to Mr Rankine, Mr Marino had written:

‘To date, none of the Referral Agencies have responded to the amendments requested.  This means consent by them having no interest in the matter.

We have on hand the earlier acceptance by p&e Law, on behalf of Council, so it should be fairly well plain sailing when it gets before the Judge.’ (emphasis added)

  1. [31]
    The same email noted that the barrister briefed for the application would be in Mr Marino’s office the following day and they would be ‘looking at what day we can get the matter before the Judge’.  The application was eventually filed on 16 October 2019.  By this time four of the five sales of the Newland St lots in issue in this case had settled.  The fifth of the lots settled on 30 October 2019.

Some last-minute hesitation quickly subsided

  1. [32]
    On 1 November 2019, Council’s lawyers P&E Law wrote to Marino Lawyers suggesting some minor changes to the draft order.  However, it also expressed some last-minute hesitation about how the application bore upon the interests of buyers who had already purchased lots in Newland St, an area now being referred to as stage 10A of the development.  On that topic the letter said:

‘With respect to the Order sought in paragraph 3, we note the contents of paragraph 20 of Mr Marino’s affidavit, which states:

“Although a matter for this Honourable Court, the nature of the proposed changes are such that they will not materially affect those lots of the original land not currently owned by the applicant and that because of the number of owners, it is impracticable to get the consent of those owners.”

We are instructed that five out of the seven lots in stage 10A have been sold.  On that basis, your client will need to demonstrate that the nature of the proposed changes will not materially affect those lots.

It may be that your client can address these matters by providing proposed layout plan for the reconfiguration for stage 10B, demonstrating how your client intends to address impacts on the stage 10A lots in its design.’

  1. [33]
    This last-minute hesitation about the interests of the buyers of the lots was short-lived.  On 5 November 2019, Marino Lawyers sent P & E Law a comprehensive and strongly worded letter expressing its dismay at P & E Law having raised such a matter at such a late stage.  It reminded P & E Law of the history of dealings with Council, asserting Marino Lawyers had, based on the representations of Council’s own officers, understood there were no issues of the kind P & E Law had belatedly raised regarding the inclusion of stage 10B as future developable land within the development.  
  2. [34]
    Mr Marino testified the concept of parties being ‘materially affected’, had a particular legal meaning by reference to the Planning Act and the rationale that if a landowner does not have the ability to be a submitter for an initial development, then they are not materially affected by the matters raised in a minor modification application. Whether that is legally correct does not fall for consideration in these reasons.
  3. [35]
    Marino Lawyers sent a follow-up email to P & E Law later on 5 November 2019.  The email effectively submitted that because the vacant land adjoining the Newland St lots was not, at the time of the sale of the Newland St lots, ‘dedicated’ parkland, there was ‘no reasonable basis for any lot owner in stage 10A to expect that those lots would directly abut parkland’.  This reasoning was apparently based on the planning law status of the land adjoining the rear of the Newland St lots.  To remove doubt, there is no evidence Marino Lawyers knew of the developer’s misrepresentations to buyers.  As these reasons demonstrate, there was in fact a very reasonable basis for the purchasers of the Newland St lots to have expected that their lots would directly abut parkland.  That basis was that the developer had represented as much to them in inducing their purchases.
  4. [36]
    On the morning of 7 November 2019, P & E Law retreated from Council’s shortlived position of concern about the interests of the buyers of the lots, advising that Council consented to the proposed orders.

The application for change of use was granted

  1. [37]
    So it is that the application was heard by the Planning and Environment Court on 8 November 2019 without the Newland St lot owners having been told of it.  The application proceeded unopposed.  The Court on that day ordered the sought changes to the development approval, which included the reduction of the parkland area and the use of the excised area at the rear of the Newland St lots for residential development.

The developer believed the application  was likely to be granted

  1. [38]
    Despite the length of time it took for the lawyers to eventually file the application, it is quite clear that from May 2018, when the developer learned of Council’s supposed disinterest in owning the parkland behind Newland St, the developer had actively sought to persuade Council to support a change to the condition by which that land was to revert to Council so that it could instead be developed into residential lots.  It is likewise clear that by 30 August 2018 the developer knew it had Council’s formal support in seeking the necessary development approval to implement its plan to turn the parkland into residential lots.  But for some brief hesitation, expressed and abandoned by P & E Law in early November 2018, that support continued through to the hearing.  
  2. [39]
    The lots had all sold by the time of the court order of 8 November 2019, with settlement on the last of the five lot sales occurring on 30 October 2019.  They had been marketed on the basis they would adjoin parkland and there were ‘no current plans to develop the parkland’.  Despite this, the developer in effect argues it could not have had any plan to turn the parkland into residential lots until it secured the Court order.  
  3. [40]
    The developer adduced evidence from its solicitor, Mr Marino, that in his considerable experience of planning and environment law and property development he had never encountered an instance where Council decided to allow land to be dedicated to it as parkland, to instead revert to a developer’s further use for development.  He evidently advised Mr Rankine as much.  But however novel this Council decision may have been, there is no evidence that novelty bore upon the prospects of success of the change of use application.  There is no evidence to suggest the developer doubted those prospects of success on account of the rarity of the decision Council had taken.  
  4. [41]
    Mr Rankine testified that prior to the Court order he only believed there was a 50/50 chance of the planned change of use occurring.  Even allowing that, as Mr Rankine explained in re-examination, there had been past occasions when Council had changed their minds at short notice, it is implausible Mr Rankine only thought the chances of success were 50/50.  
  5. [42]
    Mr Rankine knew from at least 30 August 2018 that the developer had Council’s formal cooperation and support in pursuing the application necessary to implement its plan.  The developer’s lawyer had even advised the application ‘should be fairly well plain sailing when it gets before the Judge’.  The only subsequently concerning event had been Council’s lawyer’s last minute and quickly abandoned hesitation about the effect of the proposed change on the buyers.  Mr Rankine acknowledged that short-lived blip was the first time anyone had indicated the application might be other than plain sailing.  As the corporate mind of the developer he would likely have believed the chances of securing the court’s order were good – particularly if he succeeded, as he did, in keeping his plan secret from the buyers before the court hearing.

This was a longstanding, well-prepared plan

  1. [43]
    In any event, the point is not a critical one because the developer’s plan was no less a plan or ‘current plan’ merely by reason of the fact that all steps necessary to implement it had not yet occurred or that some obstacle to those steps might yet emerge.  The developer’s plan to develop the parkland was real.  It was founded not on fanciful imaginings but the occurrence of real events from 11 May 2018 onwards.  Those events included activity specifically calculated at implementing the plan, by:
    • instructing the developer’s lawyer to pursue its implementation;
    • drafting and providing to Council written plans by the developer’s design draftsman for the excising of the parkland behind the Newland St lots to become stage 10B of residential development;
    • undertaking a surveying and engineering investigation to define the metes and bounds descriptions of stage 10B;
    • repeated communications on the developer’s behalf about the plan with Council, including to assuage its concerns and secure its positive support for the plan and the requisite change of use application;
    • repeated communications on the developer’s behalf with Council and concurrence agencies about the proposed application and order sought.
  2. [44]
    However, as will now be seen, the developer saw to it that prospective buyers were told nothing of those plans for the residential development of the parkland at the lots’ rear.  To the contrary the developer caused it to be represented to prospective buyers that the land would remain parkland.  The obvious motive for doing so was to secure a higher price for the lots than would occur if the developer’s true intentions were known.

2.What was represented to the buyers by the developer?

Who were the buyers?

  1. [45]
    The relevant five buyers and their purchases were:

BUYERS

LOT NUMBER

DATE

CONTRACT

SIGNED

DATE OF

SETTLEMENT

Edward Joseph

Hayes

Lot 119 Newland St

12 March 2019

26 March 2019

Lesley Ann

Ray

Lot 124 Newland St

26 March 2019

9 April 2019

Brian Phillip

De Graaff &

Susan Lundy

De Graaff

Lot 122 Newland St

12 August 2019

9 September 2019

Clement

Victor Mance

& Jillian

Mance

Lot 120 Newland St

18 September 2019

10 October 2019

Stephen John

Ducksbury &

Keran Jane

Thomas

Lot 121 Newland St

30 September 2019

30 October 2019

  1. [46]
    The purchasers of lots 119 and 121 were the named plaintiffs (although by the time of trial Mr Hayes had died and the plaintiffs for lot 119 were Mr Hayes’ wife and personal representatives).  The buyers of lots 120, 122 and 124 were represented parties.  The purchasers of all five lots are collectively referred to as the buyers in these reasons.  The purchasers of the remaining two lots in Newland St, lots 123 and 125, did not join in the proceeding.

The advertising of the lots

  1. [47]
    In the era during which the Newland St lots were marketed, there was a sales billboard prominently positioned on the lots.  A brochure dispenser holder was mounted on it, holding multiple copies of a sales brochure also available from the developer’s marketing real estate agents, Yungaburra-Tinaroo Realty.  
  2. [48]
    The brochure described the Newland St lots as ‘Yungaburra Springs’ and included an aerial view taking in the superimposed configuration of the Newland St lots and the adjoining grassland and treelined creek beyond, endorsed respectively with the labels ‘vacant grassland’ and ‘natural spring’.  
  3. [49]
    The obvious purpose of marketing the lots by reference to the positive aspect of the vacant grassland next to them was to represent that the lots would have that positive aspect.  
  4. [50]
    The same aerial view with the same configuration overlays and the labels ‘vacant grassland’ and ‘natural spring’ appeared on the billboard.  The billboard listed various appealing features of the lots including, ‘Natural free flowing spring near-by’.  A photograph of this billboard was posted by the developer’s Mr Rankine on Facebook on 10 January 2019.
  5. [51]
    Two other advertisements marketing the Newland St lots were published on Facebook for a prolonged period until at least the filing of the claim.  One, published on Mr Rankine’s Facebook page, from about 28 August 2018, relevantly stated:

‘YUNGABURRA SPRINGS now fully constructed, 7 residential elevated lots fronting vacant grassland yet only 120m walk to foodworks also featuring a natural free flowing spring nearby.  6 lots remaining.’

  1. [52]
    The second, published on the developer’s Facebook page from about 20 December 2018, relevantly stated:

‘YUNGBURRA (sic) SPRINGS

OPEN VIEWS OF THE VALLEY

OPEN GRASS LAND WITH NATURAL SPRING CLOSE BY.’

  1. [53]
    The lots were also advertised on Yungaburra-Tinaroo Realty’s website.  The website advertising contained various photographs of the Newland St lots.  Some, taken from ground level, showed an attractive aspect over the parkland at the rear of the lots across the expanse of grassland down towards the tree-lined spring-fed creek.  There were also aerial photographs of the broader expanse of development land incorporating glimpses of Lake Tinaroo in the distance.  One such shot specifically superimposed the configurations of the Newland St lots over the general aerial view of the lots and the parkland to the rear.  Again, the obvious purpose of such imagery was to represent that the lots would have the positive aspect of adjoining and overlooking the parkland. 
  2. [54]
    The website included this content:

‘This new land release is located only 120m from Yungaburra shops and restaurants, with all services including town water, sewage, underground power, NBN, phone, rubbish collection and mail delivery.  With no current plans to develop the parkland behind the block ensuring private in town living with no direct rear neighbours to allow seclusion and benefitting from the natural spring fed creek nearby.  Lot 124 is the second largest block along Newland St and offers a fantastic environment to raise your family or to build a lovely weekender to visit, relax and get away when needed!  Superb building allotments Get in fast and purchase your perfect home site now as these blocks are limited to only seven!’ (emphasis added)

  1. [55]
    The content of such advertising was consistent with the import of the website’s visual representations as well as the afore-mentioned representations in the marketing brochure and billboard.  Each highlighted the appealing selling point that the lots had the privacy, seclusion and beauty of parkland rather than neighbouring houses at the rear of the property.  The highlighting of such features conveyed the impression to a reasonable prospective purchaser that the lots would have such appealing features into the foreseeable future.  
  2. [56]
    The developer’s counsel emphasised the developer’s representations gave no projected timeframe into the future.  That is correct.  But their content, and the fact they were made, was obviously intended to go beyond the present and convey what the future position would be after purchase.  That was obviously the point of making such representations to prospective purchasers.  In the absence of some qualifying timeframe conveyed by the developer’s representations, the message conveyed was about the future as presently known and foreseen by the developer.
  3. [57]
    Deployment by the developer through its agents of the language, ‘no current plans to develop the parkland’, conveyed the meaning, from the perspective of a reasonable person, that, at least as far the developer knew, the lots would continue to adjoin and overlook parkland.  Indeed, the above quoted reference to ‘no current plans to develop the parkland’ was accompanied by the representation, in the same sentence, that the absence of such plans had the effect of ‘ensuring private in town living with no direct rear neighbours to allow seclusion’.  However, contrary to ‘ensuring’ that valuable aspect the developer’s then plans, i.e. its ‘current plans’, in truth aimed to remove it.
  1. [58]
    The developer’s counsel repeatedly suggested to witness lot owners that the word ‘current’ in ‘no current plans’ put the reader on notice of the prospect that the presence of the parkland may not endure permanently.  Their responses indicated they had not read it that way, though some accepted it might be read that way.  Nothing turns on this because even without such a clause no buyer of any real estate can be assured the use or configuration of neighbouring land will never change in the future.  The hypothetical risk of such future change is ever present.  But this case is not about the unheralded manifestation of a hypothetical risk of such change.  The risk of the parkland being developed in the future was no mere hypothetical risk.  It was what the developer was already actively planning to do.  Buyers can only inform themselves of the prospect of change in the future based on what is currently known about the future.  The developer not only failed to tell the buyers what it then knew of its own plans for the future of the parkland, it positively marketed the lots as if they would have the future benefit of the parkland aspect those plans were aimed at removing.
  2. [59]
    Representing to buyers of the lots that their lots would adjoin and overlook the parkland would have done more than just attract buyers.  It would also have induced buyers to pay a higher price than they would if they knew the developer was already planning to replace the adjoining parkland with more residential development.  
  3. [60]
    If any confirmation of that obvious point were needed, the valuation evidence led by both sides confirmed that the market value of the lots, if adjoining and overlooking parkland, was materially higher than it would have been if adjoining and overlooking other residential lots.  Herein lies the obvious motivation for the developer’s conduct – obtaining the payment of higher purchase prices than would be paid if the truth of the developer’s plans to develop the parkland were known.

Representations made to Mr Hayes and Ms Young (lot 119)

  1. [61]
    Eddie Hayes and his wife Colleen Young, who were long known to each other, married in 2018.  Eddie died after this claim was filed, having endured his end-stage cancer while the saga continued.  His witness statement was evidence in the trial.  
  2. [62]
    Mr Hayes and Ms Young initially bought lot 119 in Mr Hayes’ name, to safeguard their business arrangements, but Ms Young was later added as an owner (she is also an executor of Mr Hayes estate).
  3. [63]
    From Christmas 2018 and into the early months of 2019, Mr Hayes and Ms Young were looking for a retirement home in the village of Yungaburra.  They heard about the Newland St lots from friends.  They drove there and walked over the lots.  
  4. [64]
    They saw the sales billboard and the content of one of the brochures they took from it.  They subsequently viewed the advertisements of the lots on Yungaburra-Tinaroo Realty’s website.  Mr Hayes also saw the photograph of the Billboard posted by Mr Rankine on Facebook.
  5. [65]
    They believed the lots would have the aspect which had been advertised.  They were very attracted by the reduced number of neighbours and the views over and proximity to the adjoining parkland, with its grassland, wild nature stream and wildlife, including wallabies.
  6. [66]
    Mr Hayes spoke on a number of occasions to Nicole Duane of Yungaburra-Tinaroo Realty.  He enquired why the prices of the Newland St lots were higher than the other lots in Yungaburra Village Estate.  She explained it was because ‘the lots were different from the others in the estate as they were next to the parkland, had no rear neighbours, had views and access to the spring and were close to the Village’.  Mr Hayes, who had noticed the brochure described the parkland as grassland, asked whether the land behind the lots was a park.  Ms Duane said it was.  She subsequently emailed him a copy of the same brochure he had obtained from the billboard’s brochure dispenser holder.
  7. [67]
    The developer’s counsel contended the agent’s oral representations were descriptive only of the present.  But that ignores the meaning flowing from the context in which such representations were made.  Telling a prospective purchaser of a lot that the land which the lot adjoins and overlooks at the rear ‘is’ parkland conveys the meaning that the property if purchased will, at least so far as is known, adjoin and overlook parkland into the foreseeable future.  Were it otherwise it would be pointless conveying such a representation in marketing the property for sale.  As much is confirmed by the added context that the parkland aspect was proffered as part of the explanation for the comparatively high purchase price.  It was in effect to say, ‘You should pay this high price because this is the valuable aspect your property will have’.
  8. [68]
    Mr Hayes and Ms Young became particularly interested in purchasing lot 119, which not only had the appealing aspect of the adjoining parkland at the rear, but also the continuation of a strip of it along one side of the lot up to the street front, which they understood accommodated a drainage easement.  That was the lot they decided to purchase to build their dream home on.  
  9. [69]
    In the cooling-off period after signing the contract, Mr Hayes contacted one of the Council’s planning officers, Ms Whittaker, to doublecheck if there were any issues relating to the property that may be problematic for a purchaser.  She advised him the parkland was part of a development approval and would become the responsibility of Council.  Such information was of course consistent with the representation in the website advertising of the development that there were no current plans to develop the parkland.

Representations made to Ms Ray (lot 124)

  1. [70]
    Lesley Ray, a Brisbane based executive manager planning for her retirement, was searching for a home to buy in far north Queensland where she had been raised.  She had siblings in Mareeba and Tully and concluded she wanted to retire to live in Yungaburra, it being a pretty place between those two towns.  Her searches on realestate.com discovered the lots in Newland St being marketed by YungaburraTinaroo Realty.  
  2. [71]
    She viewed the website advertising.  Beyond that advertising’s content already described above, its photographic views of lots 124, in which Ms Ray became interested, also included a view of a large mango tree positioned in the open grassland area to the rear of lot 124.  
  3. [72]
    The advertising attracted Ms Ray’s interest because she had originally been looking for an established home in the village of Yungaburra, not wanting to build, and end up in, part of an urban development.  However, she was attracted by the appeal of building on a lot which, on the one hand, would be a short distance from the centre of the village – less than a five-minute walk – but on the other hand also abutted and overlooked the parkland area rather than other houses.
  4. [73]
    Ms Ray also obtained and read the marketing brochure. 
  5. [74]
    The advertising identified Nichole Duane as the relevant marketing agent from Yungaburra-Tinaroo Realty.  When Ms Ray contacted Ms Duane she asked whether the parkland behind the lots was remaining parkland.  Ms Duane told her that it was and that the Council would maintain it.

Representations made to Mr and Mrs De Graaff (lot 122)

  1. [75]
    Brian and Susan De Graaff purchased lot 122.  They already owned a property near Yungaburra at Lakeside beside Lake Tinaroo.  They were looking for an investment property and became aware of lot 122.  They concluded that, rather than buying an existing property, they could build another new home on it, which would be a good investment.  Mr De Graaff testified it compared more favourably to a number of other properties they had looked at about Yungaburra because of the parkland it adjoined.
  2. [76]
    Mr De Graaff testified they had travelled to the block and had seen the marketing content on the billboard with its representation of the adjoining parkland and the presence of the spring.  Mr De Graaff testified they saw appeal in the parkland being a good place for their grandchildren to play.  His wife also located the website advertising for the property and showed it to him.
  3. [77]
    Mr De Graaff testified that Ms Duane met him and his wife at the property.  He asked her what was happening at the back.  She responded that the parkland was then being mowed by the developer, but when the development on the other side of the creek was completed the parkland would be taken over by the Council who would maintain it.  He explained he was particularly interested in this, in order to know whether his grandchildren would be able to access the parkland and the spring at the back. 

Representations made to Mr Mance (lot 120)

  1. [78]
    Mr Mance, an elderly retiree, purchased lot 120 with his wife who passed away in 2021.  Mr Mance testified he could recall having seen the brochure advertisement for the lot prior to making the purchase.  He recalled that the content of the brochure advertised the lots as Yungaburra Springs and advertised the grassland at the rear.  He characterised the advertising as conveying ‘a country outlook in the middle of town’.
  2. [79]
    His recollection was that he did not see the website advertisement until long after settlement, after his wife had rung the Council in relation to water connection only to learn that the parkland at the rear was to be subdivided.
  3. [80]
    Mr Mance testified they had bought the property because the land behind it was going to be parkland.  He testified he had specifically asked Ms Hayley Ainsworth of Yungaburra-Tinaroo Realty about how long the parkland at the back of the lot would be there, to which she responded, ‘As far as we know, forever’.

Representations made to Mr Ducksbury and Ms Thomas (lot 121)

  1. [81]
    Mr Stephen Ducksbury and his wife, Ms Keran Thomas, planned to move from their long-term residence on an acreage at Redlynch to the Atherton Tablelands.  Ms Thomas was planning to relocate her business there and Mr Ducksbury was planning to retire there.  Their searches included a couple of small acreage properties because the appeal to Mr Ducksbury of having to maintain an acreage property had diminished after an illness.  They also looked around the broader Yungaburra Village development and came upon lot 121.
  2. [82]
    Ms Thomas testified they saw the content of some big signage relating to the development and lots for sale.  She testified that she and her daughter looked at and read the website advertisement.  
  3. [83]
    Ms Thomas and her daughter eventually met with Ms Ainsworth at lot 121.  Ms Thomas testified that both she and her daughter asked more than once whether the land behind the lot would remain parkland.  She recalled Ms Ainsworth assured her it would remain parkland.  Her daughter, Lauren Russo, recalled asking what was planned for the grassland at the back and Ms Ainsworth confirmed the plan was that it was parkland.
  4. [84]
    It was after that meeting that Mr Ducksbury and Ms Thomas offered to purchase the property.
  5. [85]
    Because Mr Ducksbury liked car restoration, Ms Thomas had the idea that they could enhance the space for car access if permitted to have vehicular access to the lot through the rear.  She made an enquiry about that of Ms Ainsworth, concurrently with negotiating on the property’s price.  Ms Ainsworth responded with an email including the following:

‘The vendor is quite firm on the $158,500.  Will you and Stephen be prepared to go to contract at this price? …

I’ve also been informed that the land behind actually isn’t encouraged to be used as an access way to the back of blocks, maybe once every now and then for a boat or car access but they’d like to keep it as just parkland, they’ve now decided not to build a road going behind/to the side of the other end block.’ (emphasis added)

  1. [86]
    The ‘they’, to whom the email attributed the intention ‘to keep it as just parkland’, was obviously the ‘vendor’ to whom the email had earlier referred, that is, the developer.  The email’s content obviously reinforced the representation, already made, that the lot adjoined parkland.

Were they the developer’s representations? 

  1. [87]
    Yungaburra-Tinaroo Realty performed work for the developer preparatory to marketing the Newland St lots from as early as June 2018 when it performed a market appraisal.  The developer formally engaged Yungaburra-Tinaroo Realty to market the Newland St lots for sale by an appointment agreement dated 12 October 2018.  The agreement does not expressly address the scope of the representations YungaburraTinaroo Realty was authorised to make in its role as the developer’s agent in selling the lots.
  2. [88]
    Section 139B(2) Competition and Consumer Act 2010 (Cth) provides conduct engaged in on behalf of a body corporate at the direction or consent of a director or agent of it, is taken to have been engaged in also by the body corporate, if the giving of the direction or consent is within the scope of the apparent authority of the director. The evidence compels the inference in the present case that the representations were within the scope of what Mr Rankine directed and consented to in his dealings with the agents.  
  3. [89]
    The granting of authority to real estate agents to sell the lots impliedly conferred authority upon the agents to market the lots. Having authority to market must by inference include having authority to make representations about a property’s significant qualities, such as its view. For example, in Avis & Anor v Mark Bain Constructions Pty Ltd,[3] Atkinson J concluded the scope of an agent’s authority to market off-the-plan penthouse units included authority to make representations about the views to the ocean.  Her Honour reasoned the ocean views from penthouse units were ‘a core characteristic of the properties that would have had a critical impact on their value’.  Her Honour’s reasoning, approved on appeal,[4] drew upon the observation of Bacon V-C in Mullens v Miller,[5] that it is within the scope of an agent’s authority to ‘describe the property truly, to represent its actual situation, and if he thinks fit, to represent its value’.
  4. [90]
    In the present case, the apparently view enhancing and privacy enhancing aspect of the parkland at the rear was part of the lots’ ‘actual situation’.  It would obviously influence the sale price the purchasers were prepared to pay (as was confirmed by each side’s valuation evidence).  The making of representations about that aspect and its future was within the scope of the agent’s actual authority.  Further, none of the representations about that aspect were contrary to what the developer wanted or told the agents to represent.  To the contrary, as now explained, he caused them to be made.  In other words, this is a case of direct liability for the representations made by the agents.  Indeed the buyers’ counsel did not assert an accessorial liability pathway.  
  5. [91]
    Mr Rankine testified he approved Yungaburra-Tinaroo Realty’s marketing and promotional activities with respect to the lots.  He testified of the brochure and website marketing content that he had a say in their content, explaining he provided the agent with dot point features of how to put an advertisement ‘together of the block and its surrounding features’ and ‘what makes the lot great to buy’.  
  6. [92]
    Mr Rankine also confirmed he was the author of the advertisement of the lots on his own Facebook page which had been posted from about 28 August 2018 and described ‘elevated lots fronting vacant grassland … also featuring a natural free flowing spring nearby’.  There was another advertisement on the developer’s Facebook page from  about 20 December 2018 which described Yungaburra Springs’ ‘open views of the valley’ and ‘open grassland with natural spring close by’.
  1. [93]
    The posting of such content on the Facebook pages of the developer and Mr Rankine is factually consistent with Yungaburra-Tinaroo Realty’s marketing.  It supports the inference that the Yungaburra-Tinaroo Realty marketing, with its focus upon the lot’s position adjoining and overlooking vacant parkland, was the knowing marketing of the developer.
  2. [94]
    It is telling that Mr Rankine did not lay claim to ignorance of the agent’s ensuing marketing content.  The agent’s marketing was quite public.  It is inherently implausible Mr Rankine would have been unaware of its content.  He would have intervened to discontinue content he did not approve of.  I readily infer he approved of it and that its representations accorded with what he wanted the agents to represent to buyers.  Given that the agents’ oral representations to the buyers regarding the parkland and its future were consistent with the public content of the marketing, I likewise infer they accorded with what the developer wanted represented to the buyers.  
  3. [95]
    Indeed, Mr Rankine, the developer’s controlling mind, conceded he did not tell the agents that the land to the rear of the lots would probably, or even possibly, be no longer kept as parkland.  He conceded he knew from September 2018 onwards that the agent would be marketing the lots on the basis they would back onto future parkland.  
  4. [96]
    Mr Rankine did testify in cross-examination that he had never relayed to anyone that the land behind the lots was ‘parkland’ because ‘that wouldn’t be a correct statement, because its future parkland on the original approval’.  Mr Rankine’s emphasis on the distinction between the land being ‘future parkland’ rather than ‘parkland’ recurred as cross-examination progressed.  Time and again, when questioned about the reality of what was represented, he would unresponsively digress to emphasise the land was ‘future parkland’.  
  5. [97]
    Such emphasis was obviously calculated at accommodating his case’s tactical reliance on what the then planning law status of the land was.  It did not help his case.  It was evasive pedantry by a witness who was obviously reluctant to squarely acknowledge his role in misleading the buyers.  
  6. [98]
    The message conveyed by the agent’s written and photographic marketing was that the rear of the Newland St lots would adjoin and overlook vacant, open land.  Whether that land was described as grassland, vacant grassland, parkland or future parkland made no material difference to the meaning of that message.
  7. [99]
    In any event Mr Rankine’s communications with the agents used such descriptions interchangeably.  For instance:
    • In earlier requesting Yungaburra-Tinaroo Realty’s market appraisal, the developer had provided a plan of the Newland St area of the development and on that plan behind the Newland St lots was an area of vacant land labelled ‘future park’.
    • The resulting market appraisal provided to the developer by YungaburraTinaroo Realty noted the Newland St lots were comparable to property at Lakeview Heights and Lillypilly Lane ‘as they have farmland on the back side’ and the Newland St lots have ‘Park land’.
    • On 6 August 2018, in response to some example marketing brochures Ms Ainsworth had provided to Mr Rankine, he wrote:

‘Hi Hayley I like the first one with the Long Gully Dev.  when we do it we would probably show right down to the water spring and parkland below the blocks.’

  • On 14 August, in response to some draft signage, presumably for the billboard for the lots, Mr Rankine asked Yungaburra-Tinaroo Realty to remove wording which said ‘future park’ and replace it with the words ‘vacant grassland’. (emphasis added)
  1. [100]
    Furthermore, the website advertisement clearly described the land behind the Newland St lots as ‘parkland’, saying, as it did, that there were ‘no current plans to develop the parkland’.  Mr Rankine, the corporate mind of the developer, contributed to and knew the content of what was being represented in the website advertisement.  He accepted in cross-examination that he knew and approved of the wording appearing in the website advertising.
  2. [101]
    An event of particular probative significance to the present topic occurred in January 2019.  
  3. [102]
    It will be recalled that by January 2019 the developer was well advanced in its plans to, with Council’s formal cooperation and support, apply for the change of use.  It was a change that would allow the land behind the Newland St lots, which was supposed to revert to Council as parkland, to instead be kept by the developer to be made into more residential lots.  
  4. [103]
    Before Christmas 2018 a prospective buyer called Jason Weyling had made an offer to purchase lot 124 in Newland St for less than the advertised sale price.  On 2 January 2019, Ms Duane of Yungaburra-Tinaroo Realty emailed Mr Weyling, advising the developer had accepted his purchase price offer of $160,000.  Later in January, Mr Weyling learned from someone in the Council of there being plans to subdivide the land behind the Newland St lots.  
  5. [104]
    I pause to note this discovery does not demonstrate, as seemed to be implied at one point in the developer’s case, that the developer’s plan to turn the parkland into residential lots could have been easily discovered by a buyer’s cursory inquiry with Council.  It was likely a matter of chance that Mr Weyling happened to speak with someone who knew something unofficial and was prepared to speak of it.  A prospective buyer’s inquiry of what the parkland’s future was pursuant to the Planning and Environment’s existing development approval would not have discovered what the developer was planning.  As much is demonstrated by the fact Mr Hayes contacted one of the Council’s planning officers, Ms Whittaker, before settlement, to double-check if there were any issues relating to the property that may be problematic for a purchaser and was told the parkland was part of a development approval and would become the responsibility of Council. 
  6. [105]
    In any event, having learnt something of what may have been unofficially planned for the parkland behind the lots Mr Weyling spoke to Ms Duane about it. She evidently indicated she would speak to the developer.  Ms Duane spoke to Mr Rankine about what Mr Weyling had learned.  He told her the developer had no plans to subdivide behind the Newland St lots.  
  7. [106]
    The broader content of what he told her is contained in what she, in turn, relayed to Mr Weyling in an email of January 16 2019, as follows:

‘As per our phone conversation, I have spoken to the developers in regards to the information the council has provided to you.  The developer has stated they have no plans to subdivide behind the blocks on Newland Street, this is not part of their current approval that they currently hold for the subdivision, Please see attached the map.

They have advised if they wanted to amend their current approvals they would need to go to court to change this and they have lots of other blocks they can subdivide so they have no reason to do this.  The developers were not happy that the council were providing you information that is not part of the subdivision approval as they would like to keep the land behind Newland Street as Park Land as per the attached master plan.’ (emphasis added)

The attachment to that email was a plan or map which labelled the vacant land behind the Newland St lots as ‘Park’.

  1. [107]
    It was obviously untrue for the developer to assert that it had no plans to subdivide behind the Newland St lots and that it had no reason to go to court to change the current approvals and that it wanted to keep the land as parkland.   In fact, it did not want to keep the land as parkland.  Rather, it was planning to subdivide it and was well advanced in preparing to go to court to implement that plan.
  2. [108]
    The false information Mr Rankine fed Ms Duane to convey to Mr Weyling did not dissuade Mr Weyling from abandoning the contract.  To remove doubt, there is no suggestion that Ms Duane knew that what the developer had told her was false.
  3. [109]
    Even Mr Rankine accepted in evidence that he at no stage had told anyone at Yungaburra-Tinaroo Realty of his plans or that there was a possibility of the area behind the Newland St lots no longer being kept as parkland.   Further, he eventually accepted in cross-examination he ‘had a fair idea’ that what he had told Ms Duane to relay to the prospective buyer in the email was not only untrue but he knew it was untrue when he said it.  
  4. [110]
    This episode fortifies the conclusion, compelled by the evidence already discussed, that: 
    • the source of information for the agent’s documentary and oral representations to prospective buyers was the developer; and 
    • through its provision of information and instructions to the agents, the developer caused its agents to make the representations; and
    • the developer intended it to be represented to prospective purchasers, as the representations did, that the land at the rear of the lots would not be built on and would remain as vacant parkland; and
    • the developer did not want prospective purchasers to know its intended future use of the land was contrary to those representations.

3.Were the representations misleading and deceptive per the Australian Consumer Law?

  1. [111]
    The buyers allege the developer’s representations were misleading and deceptive per ss 18 and 30 Australian Consumer Law.[6] Both sections preclude conduct of a certain kind by a person ‘in trade or commerce’. The representations were clearly made in trade or commerce – they were made in selling and marketing the sale of land by a property developer.  While the making of the representations was by the agents, I have found the representations were caused as intended by the developer.
  2. [112]
    In this case there is no practical distinction in the way ss 18 and 30 preclude the conduct complained of.  Breaches of both have been established via proof of essentially the same conduct, by the developer, in making or arranging for its agent to make the representations.

Was it misleading and deceptive per s 18?

  1. [113]
    The conduct precluded by s 18 is engaging in ‘conduct that is misleading or deceptive or is likely to mislead or deceive’.  The developer’s conduct in knowingly causing its agent to make representations was ‘conduct’.  The issue is whether the representations were misleading or deceptive or likely to mislead or deceive.
  2. [114]
    Conduct will be misleading or deceptive if it tends to lead a person into error.[7] The representations had that tendency because they lead prospective purchasers to wrongly believe that, at least as far the developer knew, the lots would continue to adjoin and overlook parkland at the rear.  Yet at the time of their making, the developer knew it was planning to deprive purchasers of that aspect.
  3. [115]
    It is not necessary prove an actual intention to mislead or deceive and enough that, viewed objectively, the relevant conduct was misleading or deceptive or likely to mislead or deceive.[8] Objectively it is clear the representations were both misleading and deceptive and likely to mislead and deceive, in that they represented the land at the rear of the lots would not be built on and would remain as vacant parkland.  
  4. [116]
    More than that, such representations as to the future implied that was the future as presently known and foreseen by the developer.  In other words, they were not only representations about the future, they were implicitly representations about the developer’s current knowledge of that future.  Yet the developer’s current knowledge was that he planned to develop the parkland into residential lots and had long been engaged in activity specifically calculated at implementing that plan.  The developer was deliberately misleading prospective buyers, deceitfully enticing them into  making high priced purchases, by representing they would be acquiring land with a valuable parkland aspect, while keeping secret from them that the developer already planned to deprive them of that valuable aspect.  It was intentionally misleading and deceptive conduct.
  1. [117]
    Such a strong case does not require the assistance of a deeming provision but s 4 of the Australian Consumer Law is such a provision. It provides that if a person makes a representation as to any future matter and does not have reasonable grounds for making it, the representation is misleading. The section provides such a representation will be taken to be misleading unless evidence is adduced to the contrary. The developer did not meet that burden here.  
  2. [118]
    The developer contended it had reasonable grounds because the representations accorded with the existing approval for the development.  Its submissions seemingly rationalised that nothing about its real intentions mattered because nothing legally changed until the Planning and Environment Court made its order authorising the developer’s change of use on 8 November 2019, after the lots were bought.  
  3. [119]
    It was a rationalisation which may have been less jarring in a breach of contract case.  It ignores the deceitfulness of the developer’s conduct in simultaneously enticing buyers’ high-priced purchases, by representing they would be acquiring land with a valuable parkland aspect, while keeping secret from them that it was actively planning to deprive the lots of that aspect.  
  4. [120]
    As earlier explained the developer’s plan was no less a plan or ‘current plan’ merely by reason of the fact that all steps necessary to implement it had not yet occurred or that some obstacle to those steps might yet emerge.  The developer’s plan to develop the parkland was real.  It was founded not on fanciful imaginings but the occurrence of real events from 11 May 2018 onwards.  
  5. [121]
    It is well established that literally true representations accompanied by silence about facts may render the representations misleading or deceptive where the circumstances are such as to give rise to a reasonable expectation that if those facts existed, they would be disclosed.[9] The developer was silent as to the fact it was substantially progressed in implementing its plan, including in preparing to apply for the necessary change to the development approval with Council’s support, to turn the rear parkland into residential development.  The notion that all of that was, as a matter of degree, irrelevant until such time as the Planning and Environment Court ordered a change of use is risible.  It was a consideration of obvious importance to buyers, who would learn nothing of it by searching the existing development approval.  If, as is now contended, the representations were only intended  to reflect the state of the existing development approval then reliance on that as a selling point carried the reasonable expectation the developer’s well advanced plans to seek a court order changing that approval would also be disclosed.
  6. [122]
    In any event, quite apart from the effect of that silence, the representations were literally false.  The representations were not cast as representations of the parkland’s designation in the existing development approval but rather as representations of what was known about the future of the parkland.  It was misleading and deceptive to represent that the rear of the lots would not be built on and would remain as vacant  parkland because the developer knew it was intending to turn the land into residential development.  As these reasons have already found, by the time of the representations to the purchasers the developer was well advanced in implementing that intention by preparing to seek a court order it believed it had good prospects of obtaining.  The literal falsity is well illustrated by the developer’s express representation it had ‘no current plans to develop the parkland behind the block’ when in fact its then plans, i.e. its ‘current plans’, were to develop the parkland behind the block.
  1. [123]
    The breach of s 18 has been proved.

Were the representations false and misleading per s 30?

  1. [124]
    The buyers also alleged a breach of s 30 Australian Consumer Law.  
  2. [125]
    Section 30 relates specifically to a type of conduct in trade or business ‘in connection with the sale … or … possible sale of … an interest in land or in connection with the promotion by any means of the sale of an interest in land’.  
  3. [126]
    It is not in issue that the representations were made in connection with the sale of land and its promotion for sale.  The conduct s 30 relevantly precludes is making ‘a false or misleading representation concerning the characteristics of the land’.[10] The representations did concern the characteristics of the land, specifically what the rear of the land would adjoin and overlook.  The issue is whether the representations were false or misleading.  
  4. [127]
    The above reasons why the developer’s conduct in making the representations was misleading and deceptive under s 18 also explain why the representations were false and misleading under s 30.  
  5. [128]
    The breach of s 30 has also been proved.
    1. Were the representations fraudulent under the tort of deceit?
  6. [129]
    In addition to pleading an entitlement to damages per s 236(1) Australian Consumer Law for breaches of its ss 18 and 30, the buyers pleaded an entitlement to ‘damages for deceit or fraudulent misrepresentation (including exemplary damages)’.  That choice is explained by the fact that damages per s 236(1) Australian Consumer Law are only compensatory in nature.  In a case like the present the Australian Consumer Law does not provide for the awarding of exemplary damages, that is, damages designed to punish a defendant and deter similar future conduct.  However, such damages are available as a remedy for deceit or fraudulent representation.[11]  
  7. [130]
    Deceit and fraudulent representation are different causes of action. The buyer’s counsel contended there was no practical difference in their application to the present case. It framed its submissions around the tort of deceit, as did the developer’s counsel.  These reasons will do likewise.

What needs to be proved?

  1. [131]
    Submissions proceeded in acceptance that, as Lord Herschell observed in Derry v Peek,[12] proof of deceit requires proof of fraud.  Proof of such a serious allegation requires a commensurately high standard of satisfaction.[13]
  2. [132]
    In the case of a false representation, it was explained in Derry v Peek,[14] that fraud will be proved when it is proved the false representation was made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false.[15] That is reflected in the second of the following five elements of deceit identified in Magill v Magill:[16] 
    1. the defendant made a false representation;
    2. the defendant made the representation with knowledge it was false, or the defendant was reckless or careless as to whether the representation was false or not;
    3. the defendant the representation intending that it be relied upon by the plaintiff;
    4. the plaintiff acted in reliance on the false representation;
    5. the plaintiff suffered damage which was caused by reliance on the false representation.

Deceit has been proved

  1. [133]
    The need for consideration of the final two elements, reliance and causation, arises in connection with consideration of breaches of the Australian Consumer Law.  The reasons given below in dealing with those aspects of the case will explain why those two elements are proved.  The reasons already given above explain why the first three elements have been proved.
  2. [134]
    As to the first element I have found the representations that the rear of the lot would not be built on and would remain as vacant parkland were false because the developer well knew it was intending to turn the land into residential developments and was well advanced in implementing that intention by preparing to seek a court order it believed it had good prospects of obtaining.  
  3. [135]
    Where false representations are made by an agent, such as a real estate agent, as distinct from by the principal, the principal may nonetheless be liable in deceit in some circumstances.  One such circumstances is if the principal authorised the agent to make the false representations which the principal knew to be untrue, regardless of whether the agents knew the truth.[17] That is the situation established by the evidence in this case, for I have also found the developer knowingly caused its real estate agents to make the false representations.  
  4. [136]
    As to the second element, I have found the developer knew the representations were false.  He was not merely reckless or careless about their falsity.  I have found the  falsity was deliberate, deceitfully enticing buyers into paying a higher price for a valuable parkland aspect than would be paid if the developer revealed the truth was that it planned to deprive the lots of that aspect with residential development.  The conduct was obviously calculated at making more profit on the sales than would occur if the truth were known.  The evidence of these features of the case is so strong as to satisfy the high standard of satisfaction required to conclude, as I do, that it proves fraud.
  1. [137]
    As to the third element, the effect of my findings is that the developer intended the representations be relied upon by the buyers.  The whole point of the exercise was to induce buyers into paying the materially higher price attracted by a property adjoining and overlooking parkland as compared to a property adjoining land intended for residential development.
  2. [138]
    The buyers have made good their case in deceit.  They are thus entitled to exemplary damages in addition to compensatory damages, in the event I elect to award damages rather than injunctive relief.

5.Did the buyers rely upon the developer’s representations to their detriment?

  1. [139]
    The breaches of the Australian Consumer Law and of the tort of deceit by the developer’s conduct cannot attract potential relief if the buyers did not act to their detriment in reliance on that conduct. The conduct need not have been the sole contributing causative or inducing factor.  In the context of breaches of the Australian Consumer Law the breach must have been a material cause of the loss or damage and in the context of deceit the fraudulent misrepresentation must have been a real inducement in causing a plaintiff to do whatever caused the loss.[18]

The representations were made to all buyers

  1. [140]
    It is therefore necessary to consider the casual influence of the representations upon each of the buyers and whether they acted upon the representations to their detriment.  
  2. [141]
    The above analysis of the representations made to the buyers shows there were four sources of representations to which the respective buyers (or at least one of a buying couple) were variously exposed.  They were:

BUYERS

Billboard

Brochure 

Website

Agent Conversation

Edward Hayes &

Colleen Young

✔

✔

✔

✔

Lesley Ray

✔

✔

✔

Brian & Susan De

Graaff

✔

✔

✔

Clement & Jillian

Mance

✔

✔

Stephen Ducksbury & Keran Thomas

✔

✔

✔

  1. [142]
    Additionally, Mr Hayes also saw Mr Rankine’s Facebook post of the billboard.  
  2. [143]
    It will be recalled both the billboard and brochure described the Newland St lots as ‘Yungaburra Springs’ and included an aerial view taking in the superimposed configuration of the Newland St lots relative to the adjoining grassland and treelined creek beyond, endorsed respectively with the labels ‘vacant grassland’ and ‘natural spring’.  So, whether via the billboard or brochure or both, those representations were made to each of the buyers.
  3. [144]
    Similarly, one or the other of Yungaburra-Tinaroo Realty’s agents represented to each of the buyers that the parkland would remain parkland.
  4. [145]
    Mr Mance was the only one of the buyers who did not testify to seeing the website advertising, which, additional to having more photographs of the parkland aspect relative to the Newland St lots,  also contained the written representation about ‘no current plans to develop the parkland behind the block ensuring private in town living with no direct rear neighbours to allow seclusion and benefitting from the natural spring fed creek near-by’. It follows the content of the representations made to the buyers was essentially the same except that Mr Mance was not exposed to the written representation in the website.

A counterfactual analysis does not help the developer

  1. [146]
    The developer’s submissions urged a hypothetical, counterfactual analysis, inquiring what would have occurred had it not been represented that the lots would adjoin parkland that would not be built on.[19] But for the representations in the marketing it is doubtful whether all of the buyers would have inspected the lots.  Let it be assumed for the sake of this counterfactual though, that the buyers would have inspected and thus seen for themselves that the lots adjoined and overlooked an attractive, vacant expanse of land at the rear.  It remains that each buyer, aware of the appeal of that aspect, specifically asked the agents about the future of the land at the rear.  This counterfactual approach would require it to be assumed that the agents would have declined to answer the buyers’ specific requests for assurance about the land’s future.   In the face of such inquiry about such an important matter, such a non-response, by agents of a party who would surely know what its plans were for the land, would inevitably have caused prospective buyers to suspect the land would not remain the parkland it appeared to be.   
  2. [147]
    Two potential consequences would likely have followed.  Either the buyer would have offered a materially lesser price and the developer would have refused the offer because it was holding out for the higher sale prices it was falsely marketing the lots for, on the basis they would adjoin and overlook parkland.  Alternatively, the buyers would not have offered to buy the lots at all.  Either way I am satisfied the result would have been that that each of them did not buy their lot.  If it matters, I am satisfied each of the buyers in that hypothetical would not have offered to buy their lot.
  3. [148]
    The developer’s counsel argued little or no weight should be placed upon the buyers’ bare assertions of inducement because of the influence of litigious hindsight and the absence of any corroborative evidence of them acting to safeguard the feature they assert induced their purchases.  It was argued had any of the purchasers pressed for some contractual assurance that the land would remain parkland, such cautionary action would be corroborative of what may otherwise be mere hindsight assertions of inducement.
  1. [149]
    I have of course weighed the buyers’ evidence of their past thinking carefully, conscious of the risk of litigious hindsight.  However, this is not a case in which there are no objectively discernible features bearing upon the plausibility of the buyers’ evidence of their past thinking and what induced it.

The circumstances support the buyers’ evidence

  1. [150]
    Each of the buyers gave evidence of their life circumstances bearing on the appeal of the lots’ qualities to them.  Each of the buyers did not act solely upon the billboard, brochure and website marketing.  Each took the step of seeking the assurance of the agent about what was to happen with the parkland at the rear of the lots.  There is no property in a witness.  It was open to the developer to call the relevant agents to rebut the buyers’ evidence of the assurances given by them if they were not given.  In light of the email communication which ensued when the suspicious interested buyer, Mr Weyling, sought assurance from the agents, it was no surprise the developer did not dispute the buyers’ evidence of what occurred when they sought assurance from its real estate agents.  
  2. [151]
    The developer’s counsel highlighted that buyers made or caused their conveyance lawyers to make independent inquiries about the lot being purchased.  It was submitted this suggested they were not as reliant as alleged on the representations.  But there was no evidence to suggest abnormally comprehensive inquiries were made, as if to suggest the representations were not relied upon.  
  3. [152]
    A circumstantial aspect of the evidence countering the argument of litigious hindsight is that the valuation evidence adduced by both sides showed the purchase price paid for each of the lots was materially higher than the lots’ market value as lots adjoining future residential development rather than parkland.  That highlights how obviously the consideration that the lots would adjoin parkland would have influenced the thinking of any prospective purchaser in the market.  It fortifies the reliability of the evidence of the individual buyers now discussed that they would not have bought their lot if they had known, contrary to what was represented, that the lot would not adjoin parkland. 

Mr Hayes and Ms Young relied on the representations to their detriment

  1. [153]
    It was suggested to Ms Young in cross-examination that the reference in the development’s marketing to there being ‘no current plans to develop the parkland’ served to alert a reader that what was advertised might not necessarily remain static over the longer term.  Ms Young agreed it could do so if read word for word, but explained, she and her husband believed what had been advertised.  She testified it did not ever enter their minds that they would have more than one neighbour.  That is unsurprising.  After all, the representation there were no current plans to develop the parkland was what was claimed, in the same representation, to ensure ‘no direct rear neighbours to allow seclusion’.
  2. [154]
    The contract Mr Hayes entered into contained special conditions which had also been contained within the marketing brochure for the lots.  It included clause 2 which provides:

‘The Buyers acknowledge that it is their responsibility to satisfy themselves as to the provision of water, electricity and other services or amenities to the land and that the Seller has given no warranties to the Buyers regarding the provision of those services and that no representations in that regard have been made to the Buyers by the Seller, the Seller’s Agent or anyone else on behalf of the Seller and the Seller shall not be liable to the Buyers in any way for any failure or delay in the provision of those services.’

  1. [155]
    The developer’s counsel placed reliance upon this clause, particularly its reference to ‘services or amenities to the land’ and its disavowal of ‘representations in that regard’ as an important qualification upon the advertised representations.  The marketing represented the lot possessed the appealing aspect of adjoining and overlooking parkland to the rear.  The developer’s counsel, in effect, contended that the word ‘amenities’ in clause 2 was a reference to such aspect, even referring to judicial interpretations construing the word as extending to ‘pleasant or beneficial circumstances’.  However, its contextual positioning after the clause’s reference to ‘water, electricity and other services’ is likely to have suggested to an ordinary reader that it was intended to refer to the physical provision of facilities to the property, as distinct from more incorporeal concepts such as the property’s aspect or view.  
  2. [156]
    Such an interpretation appears to be well supported by the clause’s disclaimer of ‘warranties … regarding the provision of those services’ and disclaimer that ‘the Seller shall not be liable to the Buyers in any way for any failure or delay in the provision of those services’.    That disclaimers’ absence of reference to the words ‘or amenities’ was scarcely likely to alert the reader that the clause’s earlier reference to amenities was intended to go beyond the physical provision of facilities to the property to embrace more incorporeal concepts such as its aspect or view.  It further diminishes the prospect of an ordinary reader understanding the word ‘amenities to the land’ in clause 2 as referring to the property’s aspect or view.
  3. [157]
    In any event, reliance upon a clause by which the buyer acknowledged it was the buyer’s responsibility to be satisfied about aspects of the property does not engage realistically with the nature of this case, which is not a breach of contract case.  This clause was unlikely to be interpreted by an ordinary reader as relevantly qualifying the representations regarding the parkland  aspect, let alone diminish the likelihood of reliance upon them.
  4. [158]
    Mr Hayes and Ms Young bought their lot because of the benefits of its parkland aspect.  Ms Young accepted in cross-examination that the lot had several other advantages, including its proximity to the village, but she rejected the suggestion that, irrespective of the parkland at the rear, they would still have proceeded to purchase the property because of its other advantages.  Ms Young and Mr Hayes each asserted, that they would not have bought the block if they knew the parkland was going to be developed into residential lots.  I accept that assertion.
  5. [159]
    Ms Young explained that if they had learned of the developer’s plans after buying the block but before constructing the house, they would simply have sold the block rather than build on it, because it was so difficult to build on.  Mr Hayes also stated they would not have built if they had learned of the true position.  The lot acquired by Mr Hayes and Ms Young was sloping and had a slightly triangular shape with the consequence that it was more challenging to build on than a regular shaped, flatter block.  It was the parkland aspect which justified the expense of such a build.
  1. [160]
    Mr Hayes developed an ongoing communicative rapport with the developer’s Mr Rankine in the era after settlement, when there was a prolonged period of negotiating building plans for the lot which were acceptable to Council.  Mr Hayes appraised Mr Rankine of the building plans.  Mr Rankine had to have appreciated that Mr Hayes and Ms Young were going to considerable trouble and expense to build a home designed to maximise the view from it of the rear parkland.  He accepted in crossexamination that the plans they showed him were of a house being designed to face that view.  Yet he sat back and said not a word of the plans he was pursuing to be able to turn that view of parkland into a view of more residential lots.  
  2. [161]
    Regrettably, neither did Council.  On 6 June 2019, during an on-site meeting about his house plans with Council’s Mr Want and Ms Tanase, the topic of the parkland remaining parkland was raised in a confirmatory way by Mr Hayes.  Mr Want said it was parkland ‘at the current time’ and ‘anything is possible’, ‘but it can’t be changed without court approval’.  The developer’s counsel submitted such words signalled such uncertainty as to diminish continuing reliance upon the pre-sale representations.  I reject that.  From the perspective of a person in Mr Hayes’ position they were no more than another way of stating the ever present risk of land ownership, that some future lawful change may occur in the use to which neighbouring land may be put
  3. [162]
    Even after the court approval there remained ample time for Mr Rankine to tell Mr Hayes of the change, before Mr Hayes and Ms Young incurred the substantial expense of building a house specially designed to  maximise a view it would no longer have.  Still he remained silent.
  4. [163]
    Mr Hayes and Ms Young installed a significant rock wall at the rear of the property in 2019 as a prelude to the commencement of construction in late 2020.  Construction was well advanced by February 2021 when, on 19 February, Mr Hayes learned from lot 120’s Mr Mance of the developer’s plans to develop the rear parkland.  Mr Mance had only learned of those plans by chance, after the purchase of his lot, when his wife was talking to a Council engineer about their water connection ‘and got talking’.
  5. [164]
    Mr Hayes confronted Mr Rankine about this news.  The diversionary explanations given in response were that:
    • the land was parkland but had changed after their purchase, 
    • Council did not want to look after the parkland, 
    • the sub-division was a long way off, 
    • the real estate agents were to blame because they should never have talked about the park, and 
    • the real estate agents could not have said anything about the parkland because the change of use ‘was in the courts’ at the time of purchase.
  6. [165]
    Mr Hayes ensuing overtures to Mr Rankine to reconsider what he had done, and to honour the representations, failed.  
  7. [166]
    By the time Mr Hayes and Ms Young learned of the developer’s true plans their contract with the builder was well underway, with the foundation and walls already built, and building about to progress to the roof.  They considered they were irrevocably committed to finishing the construction.  I accept they had no realistic option other than to complete such well-advanced construction.
  8. [167]
    The home had been specifically designed to capture the views of the unbuilt, natural  environment Mr Hayes and Ms Young thought it would overlook.  This involved construction which created an elevated rear and large floor to ceiling windows, so that from most locations in the house, including when walking through the front door, there were views out to the rear parkland.  Their costs of building totalled $942,000.  Self-evidently, they incurred the additional cost of building such a home to enjoy its advertised aspect.
  9. [168]
    Under the most recent plans for the development of the rear parkland, not only will there be residential lots at the rear of lot 119, there will also be residential lots wrapping around the side of it leading up to Newland St, giving rise in total to  four more neighbours additional to the sole side neighbour Mr Hayes and Ms Young thought they would have at lot 120.  The result, as Ms Young explained, is she is left with a house so facilitative of views at the rear that she will be on show in her own home to neighbours she never thought she would have.
  10. [169]
    Quite apart from removing the natural aspect which Mr Hayes and Ms Young thought their lot would have, the presence of lots to the rear and side of their property would preclude the pedestrian access they thought they would have down the side of the property to access its rear.  Believing they would have such access, they engaged in construction work on the property which does not give them internal access to a small rear garden area between their rear rock wall and the fence line.  The presence of the proposed additional residential lots will therefore necessitate some form of renovation work to permit internal access to the rear garden of the lot.
  11. [170]
    I accept the evidence of Mr Hayes and Ms Young.  They relied on the representations to their detriment. They would not have bought the lot had they known, contrary to what was represented, that the developer was intending to turn the parkland aspect which motivated their purchase into more residential development.

Ms Ray relied on the representations to her detriment

  1. [171]
    It was suggested to Ms Ray in cross-examination that the marketing’s reference to there being ‘no current plans to develop the parkland’ meant there was no promise or assurance that the presence of the parkland could necessarily be expected to endure permanently.  She accepted that but emphasised she believed what she had been told, on her enquiry of Ms Duane, that the parkland was remaining parkland and that the Council would maintain it.  Ms Ray explained she had no reason to doubt the conversation.  As much is obvious given that Ms Duane’s response was consistent with the representations in the published advertising of the lots for sale.
  2. [172]
    Ms Ray was also taken in cross-examination to the content of the special conditions page within the marketing brochure from Yungaburra-Tinaroo Realty, as well as within the contract for the sale of the land into which Ms Ray entered.  The developer’s counsel particularly highlighted clause 2, quoted above.
  3. [173]
    Ms Ray accepted that in that clause the words ‘or amenities to the land’ would ‘at a stretch’ be sufficiently broad to extend to the view or aspect enjoyed from a particular lot, however she testified that she did not think that the view or aspect fell into the ‘amenities’ referred to in clause 2.  She explained the category of amenities she thought was being referred to was water, electricity, NBN, sewerage and other services.  Her interpretation appears to be well supported, as explained above, by disclaimers in the clause referring only to services.  
  4. [174]
    Ms Ray accepted she engaged solicitors to perform an investigative role in respect of the lot.  However, it is quite clear she acquired the lot relying upon the representations that there would, for the foreseeable future, be parkland rather than more residential lots adjoining the rear of her lot.
  5. [175]
    Ms Ray proceeded to construct a house on her lot between April 2019 and September 2019, at a cost of $427,000. The house was specifically designed to take advantage of the views to the parkland to the rear.  Building out over the slope of the rear of the lot inflated building costs by about $20,000.  Ms Ray did not learn the parkland was to be developed until February 2021 when Mr Hayes told her of what he had learned.
  6. [176]
    Ms Ray testified that had she known the parkland was to be developed she would not have purchased the lot.  She explained she would instead have continued to search for an established home – that having been her intention until she came across the advertised lot and was attracted by the appeal of having parkland rather than neighbours at the rear.  She explained she did not want to ever live in an area that was going to be surrounded by rooftops and Besser block homes.  She accepted in crossexamination that the lot had other advantages, most obviously its proximity to the village.  However, she rejected the suggestion she would have wanted to purchase the property because of those appealing features, regardless of whether it was to have the parkland aspect at the rear.  In this context she again emphasised that she had not wanted to live in a built-up area of new homes.
  7. [177]
    I accept her evidence.  She relied on the representations to her detriment.  She would not have bought the lot had she known, contrary to what was represented, that the developer was intending to turn the parkland aspect which motivated her purchase into more residential development.

Mr and Mrs De Graaff relied on the representations to their detriment

  1. [178]
    Mr De Graaff testified that, if he had known the representation about the parkland at the rear was not true, he would have purchased another property instead.  He explained by way of example that there was one at the top of Lillypilly Lane in Yungaburra which he may have purchased instead because it backed onto bushland which they could look over instead of looking ‘over a whole heap of Colorbond roofs’.
  2. [179]
    The construction of their house took almost 12 months, concluding on 5 August 2020, at a cost of $276,000.  Mr De Graaff testified it was not until about March 2021 that he learned from Eddie Hayes that the parkland was going to be converted into residential lots.
  3. [180]
    Mr De Graaff was taken in cross-examination to the content of the special conditions page of the marketing brochure and the contract for sale, particularly clause 2 quoted above.  He did not accept that the word ‘amenities’ in that clause extended to ‘pleasant or beneficial circumstances or features or attributes of the land’.  He suggested amenities was ‘stuff like footpaths’ and was ‘not a subdivision at the back’.
  4. [181]
    Mr De Graaff accepted that the lot had other advantages such as giving the flexibility of constructing a home on it and it being close to the village centre, but he testified that, but for the expectation that the lot had the parkland aspect, he would not have bought it.  He explained the prime selling point was the parkland and the fact he could access it without neighbours being there, and that the other advantages of the lot were a bonus.
  5. [182]
    I accept his evidence.  The De Graff’s relied on the representations to their detriment. They would not have bought the lot had they known, contrary to what was represented, that the developer was intending to turn the parkland aspect which motivated their purchase into more residential development.

Mr Mance relied on the representations to his detriment

  1. [183]
    Mr Mance testified that lot 120’s position and outlook were important to him and that he would have walked away from the purchase without a firm expectation or assurance as to the view.  Indeed, when cross-examined on this point, he pointed out that when he learned the true position he had actually contacted the real estate agent to try and get his money back, albeit unsuccessfully.
  2. [184]
    Mr Mance acknowledged in cross-examination that he was likely to have read condition 2 of the special conditions although he could not recall having done so.  When cross-examined as to its meaning, he said he read the word ‘amenities’ as referring to a toilet block.  He went on to acknowledge you could call phone and water amenities but did not agree that it meant ‘something like the benefits or attributes associated with a particular piece of land’.  He also testified a view was a view, not ‘amenities’.
  3. [185]
    Mr Mance did not end up constructing a home on the lot, although he still owns it.  When it was put to him he had not put it to market because of its unique position, he responded it would be much more unique with a view and that he had been assuming he would not get his money back because he had ‘paid a premium for a view’.  
  4. [186]
    I accept his evidence.  The Mances relied on the representations to their detriment. They would not have bought the lot had they known, contrary to what was represented, that the developer was intending to turn the parkland aspect which motivated their purchase into more residential development.

Mr Ducksbury and Ms Thomas relied on the representations to their detriment

  1. [187]
    Ms Thomas testified their interest in ensuring the parkland would remain was that they had lived on an acreage in a beautiful private property at Redlynch in which they could indulge their love of nature and birdlife and wanted to live without having houses backing onto them at their new home.  The fact that the lot adjoined parkland was therefore very attractive to them.  That attraction lay not only in the added privacy but in their love of nature and birdlife and the desirability of having somewhere for their very active grandchildren to play.
  1. [188]
    Lot 121 held appeal to them in that, while it was not an acreage property, it had the parkland at the rear.  As Mr Ducksbury explained, it meant they could maintain their level of privacy without the obligation of having to maintain that land.
  2. [189]
    In cross-examination regarding the content of special condition 2, Mr Ducksbury accepted the paragraph cautioned that he ought make his own enquiries, but as to the meaning of ‘amenities’ he observed it was ambiguous and could mean many things.
  3. [190]
    Mr Ducksbury did not learn the parkland was to be converted to residential lots until early March 2021 when he heard the news from Mr Hayes.  He contacted Ms Ainsworth about it and she responded by text, explaining they were under the impression the land between the lot and the creek was ‘to stay as is’ and she provided him with the developer’s contact details.
  4. [191]
    Mr Ducksbury testified that if he had known the parkland was to be converted into subdivision he would not have purchased the lot, and if he had learned of it after settlement before constructing his house he would have sold the lot notwithstanding that he would probably have ‘copped a loss’.  He explained he would have held that attitude because the land was no longer fit for the purpose they bought it for.
  5. [192]
    Mr Ducksbury accepted the lot had some attraction because of its proximity to the village but observed that other lots were available in Yungaburra that had a similar proximity.  Mr Ducksbury was insistent that the attraction driving the purchase of the property was the parkland at the rear and that, without it, it would not have been attractive to make the purchase.
  6. [193]
    Ms Thomas testified that if they had known the truth before they purchased the lot, they would never have purchased it.  Likewise, she testified if they knew the truth after settlement but before construction, they would simply have sold the property.  The house they constructed was designed to look out over the parkland in accordance with the belief they would have such a view.  It was a house they had planned to live in until they died.  Indeed, they built it in such a way that they could have wheelchair access from their car straight into the house, and the bathrooms were set up for elderly people.  The present dispute has so tainted their wellbeing and enjoyment of the property that, whilst they still own it, they do not live there and only stay there from time to time.
  7. [194]
    When cross-examined about the content of the reference in the website’s advertising to ‘no current plans’, Ms Thomas did not accept the use of the word ‘current’ served to suggest to the reader that the author was concerned to limit the effect of what was stated to the developer’s immediate plans.  When pressed to agree that it put the reader on notice, if only implicitly, that the subdivider’s plans might possibly change over time, Ms Thomas merely observed that some readers might see it that way.
  8. [195]
    Ms Thomas was also cross-examined about the content of clause 2 of the special conditions.  She did not believe she had read the clause.  She accepted the word ‘amenities’ could be considered broad.  She did not concede it went so far as embracing the benefits or attributes enjoyed by the land and testified that ‘amenities’ in her view ‘would normally include the roadways, those sorts of things, any facilities, any park, any reserve area’.
  1. [196]
    Mr Ducksbury and Ms Thomas had contracted for a construction of a house on the property in early June 2020 and the house was not completed until April 2021.  They had only learned the truth about what was to happen with the parkland in March 2021, so that it was too late to cease building and cut their losses.  
  2. [197]
    I accept their evidence.  They relied on the representations to their detriment.  They would not have bought the lot had they known, contrary to what was represented, that the developer was intending to turn the parkland aspect which motivated their purchase into more residential development.

6.Did some buyers’ entry into a Deed of Release with the developer’s real estate agents extinguish the developer’s liability?

The buyers settled with and released the real estate agent

  1. [198]
    On 12 May 2022, the first plaintiff, Mr Ducksbury and Ms Thomas, and the second plaintiff, who was then Mr Hayes, entered a Deed of Release with the then second defendant, Yungaburra-Tinaroo Realty Pty Ltd.  In addition to being signed by the respective representatives of those parties, the deed was also signed by mediator, AR Philp QC.[20]
  2. [199]
    The deed, styled “The Release, Discharge and Indemnity”, was titled as being between the named two plaintiffs and three defendants, but of the defendants it was only the second defendant, Yungaburra-Tinaroo Realty Pty Ltd, which executed the deed.  The plaintiffs were described as the first and second releasors, and the second defendant as the releasee.  The deed recorded that the plaintiffs (the releasors) had issued proceedings against the second defendant (the releasee) by claim 575 of 2021, which is the number of the claim to which these reasons relate.  The deed recorded the parties had participated in a mediation in Cairns on 12 May 2022 before Mr Philp QC and:

‘As a result of those negotiations, the Releasors and the Releasee have agreed to resolve all matters in issue between them on the terms set out in this deed of release, discharge and indemnity (the Deed).’

The developer says that extinguished the case against it too

  1. [200]
    The developer submits that, by the terms of the compromise contained in the deed, the first and second plaintiffs’ execution of the deed had the effect of distinguishing and losing any pre-existing right of action they may once have had against all the defendants, including the first defendant, the developer.
  2. [201]
    It is not in dispute that, if the developer’s argument regarding the effect of the deed were correct, the proceeding would be at an end.  That would include the end of the represented lot owners’ entitlement to relief via the claim, for while not parties to the deed, their entitlement to potential relief via the claim is premised upon the plaintiffs’ entitlement to potential relief via the claim.   
  3. [202]
    At issue is whether, as the developer submits, the effect of the deed was to release the developer from the claim.  It presents as a bold submission given the developer did not execute the deed and was not a releasee under it.

The deed did not say it released the developer

  1. [203]
    While the deed recorded the mediation had involved all parties, the act of release by the plaintiffs as releasors was confined to the second defendant real estate agent as releasee.  The deed recorded that the releasee would pay the releasors $10,000, inclusive of interest and costs, described as ‘the settlement sum’, ‘in full and final settlement of the Releasors’ claim against the Releasee the subject of the Proceedings’.  It also recorded that upon the payment of the settlement sum the releasors would discontinue the proceedings against the releasee as soon as reasonably practicable.  Nothing in the deed suggested such payment was intended to be received in satisfaction of the claim as against the developer.  
  2. [204]
    The settlement sum was evidently paid and the plaintiffs discontinued the proceedings as against the second defendant, Yungaburra-Tinaroo Realty.
  3. [205]
    It will be apparent from such content of the deed as has already been summarised, that its effect was recited as relating only to the releasors and releasees – that is to say, the plaintiffs and the real estate agency.  Further the following act of release by the plaintiffs at clause 4.1 in the deed only refers to the releasors and releasee and not to the developer:

‘By their execution of this Deed, the Releasors release, discharge and forever hold harmless the Releasee and agree to indemnify and keep indemnified the Releasee from any and all loss arising from any or all causes of action, claims (including claims for legal costs and consequential loss of profits) demands, actions, suits or proceedings (including the Proceedings) of whatsoever nature, which the Releasors, or anyone acting on behalf of or with the authority of the Releasors, has, has had, or but for the execution of this Deed, may have against the Releasee in connection with or arising out of the Proceedings.’

  1. [206]
    Nothing was said in the deed to the effect that the plaintiffs were also releasing the developer.  Further, the developer was not a party to the execution of the document.  How then does the developer argue the claim against it was extinguished by the deed’s settlement of the claim against its real estate agent?

The developer relies on old common law rules

  1. [207]
    The developer submits the buyers’ pleaded claim against the real estate agents was common to and concurrent with the buyers’ pleaded claim against the developer.  The developer submits the release of but one of numerous co-obligors with respect to a common or overlapping liability or burden, even where the co-obligors are jointly and severally the subject of the relevant claim or liability, will serve by operation of law to release all co-obligors in the absence of a sufficient manifestation of contrary intention.  It contends there is no such manifestation of contrary intention, such as  an express reservation in the deed of a continuing intention to pursue the other defendants.  
  2. [208]
    The developer contends that the payment of an agreed settlement amount by one of numerous co-obligors to an obligee in ‘full and final settlement’ of such a common or concurrent claim will serve to extinguish and discharge the whole of the loss or damage that might otherwise be attributable to the common or concurrent claim.
  3. [209]
    The developer’s argument draws upon old common law rules that a joint tort, which requires there to have been concurrence in the tortious act or acts causing damage,[21] gives rise to one indivisible cause of action merging in the judgment, so that:
    • judgment obtained against one joint tortfeasor is a bar to action against other joint tortfeasors;[22] and
    • the release of one joint tortfeasor releases all others.[23]  
  4. [210]
    The first of those rules was abolished by s 6(a) Law Reform Act 1995 (Qld) (also see pt II, ch 2, Civil Liability Act 2003 and its provision for apportionable claims for damages arising from a breach of duty of care). In dealing with a like ACT provision in Thompson v Australian Capital Television,[24] the plurality in the High Court held such a provision’s removal of the concept of a single wrong and single cause of action removed the conceptual basis for the second rule and thus impliedly abolished it too.  That reasoning has the consequence the rule about release of one joint tortfeasor releasing all no longer applies in Queensland.[25]  

The claim against the real estate agent was only under Statute

  1. [211]
    Even without that abolition the common law rules regarding joint tortfeasors were not to the point here.  That is because the claim and amended claim as they stood at the time of the deed involved no claim in tort against Yungaburra-Tinaroo Realty.  Such component of the claim as alleged arguably concurrent conduct of the developer and Yungaburra-Tinaroo Realty as giving rise to liability was not a claim in tort.  It was a claim under the Australian Consumer Law, to damages per s 236(1), for breaches of ss 18 and 30 thereof.
  2. [212]
    The developer’s counsel argued however that the common law rules were of broader application and applied not only to joint tortfeasors but to other concurrent ‘obligors’.  Reliance was placed upon the observations of Kyrou J in Associated Retailers Ltd v Toys Unlimited Pty Ltd,[26] where his Honour observed:

‘At common law, a release of one of a number of co-debtors who are jointly, or jointly and severally, liable for the same debt releases all of them.  Similarly, if a creditor, without having received full payment or performance from the debtor, agrees to release the debtor, any guarantor will also be released.’

His Honour’s adoption of that common law reasoning regarding co-debtors was disapproved by the Victorian Court of Appeal in Harplex Pty Ltd v Konstandellos,[27] which, following the reasoning in Thompson v Australian Capital Television,[28]  concluded s 24AA Wrongs Act 1958 (Vic) destroyed the unity of the cause of action in debt on which the reasoning was based.

They were concurrent wrongdoers, not concurrent obligors

  1. [213]
    In any event, the common law rule regarding co-debtors is not to the point here.  That rule related to a shared contractual obligation. Liability in the present case did not potentially arise from the developer and Yungaburra-Tinaroo Realty having concurrent contractual obligations. Yungaburra-Tinaroo Realty and the developer were not concurrent obligors like co-debtors, co-guarantors or co-sureties.[29] Insofar as potential liability in the claim concerned Yungaburra-Tinaroo Realty and the developer, it derived not from them potentially being concurrent obligors but from them being potentially concurrent wrongdoers.  Moreover, that potential wrongdoing was not a breach of the common law but a breach of statute, specifically the statutory obligations not to engage in misleading and deceptive conduct or making false or misleading representations.
  2. [214]
    The developer’s counsel argued it did not matter whether the potential liability derived from common law or statute, contending the reasoning underpinning the  common law rule it relied upon is logically of the same application to a claim for damages under s 236(1) Australian Consumer Law. That argument must be rejected. It is not logical to extend the liability limiting reasoning of an arcane common law rule, with consequences that have been described in High Court judgments as surprising,[30] and not easy to understand,[31] to statutory pathways to liability which impose no such limitation.

The Act is inconsistent with one release releasing all

  1. [215]
    Further, far from limiting liability on the premise of indivisibility of allegedly concurrent wrongdoers’ liability, the Competition and Consumer Act 2010 (Cth), Pt VIA ‘Proportionate liability for misleading and deceptive conduct’, creates a regime by which courts can apportion damages proportionately to the responsibility of individual defendants for the damage or loss caused by misleading and deceptive conduct.  Section 87CD allows of such an approach even if all concurrent wrongdoers are not parties to the proceeding, so the old notion of one indivisible cause of action merging in the one judgment has no currency in this aspect of the statutory regime.  Section 87CG permits successful plaintiffs as against a concurrent wrongdoer to pursue a separate subsequent action against another concurrent wrongdoer conditioned that any award of damages, having regard to the earlier award, not exceed the damage or loss actually sustained by the plaintiff.  Such a regime is inconsistent with any conceptual basis for a release of one concurrent wrongdoing having the effect of releasing other concurrent wrongdoers.  Concurrent wrongdoers who are not so released are protected by the court’s statutory obligation under s 87CD to confine their liability to that proportion of the loss or damage the court considers ‘just’ having regard to their responsibility for the damage or loss. 
  2. [216]
    To remove doubt, on the evidence in the present case, the real estate agents’ concurrence in the misrepresentations occurred without knowledge of their falsity, so it is ‘just’ per s 87CD that the apportionment of the developer’s liability reflects the full extent of its singular responsibility for the falsity of the representations and the loss they caused.  In any event, I would not discount such apportionment on account of the $10,000 settlement payment by the real estate agents because the sum is so small it is unlikely to have compensated the buyers beyond their legal costs of having pursued the real estate agents.  Further, it would be irrelevant per s 87CC to the developer’s fraudulent causing of loss.  
  3. [217]
    In my conclusion, the deed of release does not bar the present claim against the developer.  

7.Is the appropriate relief an injunction or damages?

  1. [218]
    The primary relief sought by the buyers is an injunction.  They only seek damages in the event the court declines to grant an injunction.

The proposed injunction

  1. [219]
    The injunction, in its most recent sought amended form, would have the effect of: 

‘restraining the first defendant from:

  1. developing or using for any purpose other than parkland or vacant grassland, that portion of Stage 10B of the Yungaburra Village Estate which was denoted as ‘Park’ in the 24 July 2009 approval granted by the Planning and Environment Court on 10 December 2015 in Proceeding 195 of 2015 (“the Stage 10 Park”);
  2. transferring or disposing of its interest in the Stage 10 Park other than by transfer to the Tablelands Regional Council for the purpose of dedication of parkland (having first obtained any necessary court orders to legally do so);

(except with the written agreement of the owners from time to time of lots 119, 120, 121, 122, and 124 on SP 252415).’

  1. [220]
    In summary, the proposed injunction would preclude the developer from developing the land behind the lots, requiring it not be used other than as parkland or vacant grassland, and preventing it being disposed of other than by transferring it to the Council.  Its practical effect is to restore the foreseeable status of the land at the rear of the lots to parkland, consistently with what had been represented in inducing the purchases, for a price reflecting that valuable aspect.

It is an injunction pursuant to Statute, unconstrained by traditional restraints

  1. [221]
    The injunction is sought pursuant to s 232 Australian Consumer Law.  Section 232 confers broad powers to grant injunctions (consistently with the breadth of injunctive powers in s 80 Competition and Consumer Act, of which the Australian Consumer Law is a part).  Section 232 provides a court ‘may grant an injunction in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes’ a contravention of chapters of the Australian Consumer Law which include ss 18 and 30.  Its potential operation is therefore engaged in light of my findings that the developer’s conduct breached ss 18 and 30.
  1. [222]
    It is not in issue that an injunction of the kind sought is one which the court ‘may’ grant per s 232.  The issue is whether in the circumstances of this case an injunction is the appropriate form of relief.  In weighing that issue, it is to be borne in mind that s 232 confers very wide ranging powers to restrain a person from engaging in conduct or to require a person to do an act.  For example, s 232(4) empowers the court to restrain a person from engaging in conduct whether or not it appears the person intends to engage again, or to continue to engage, in such conduct;  whether or not the person has previously engaged in conduct of that kind; and whether or not there is an imminent danger of substantial damage to any other person if the person engages in such conduct.  Also, s 232(6) allows the granting of injunctions to transfer property and to honour a promise.
  2. [223]
    Gummow J observed in ICI Australia Operations Pty Ltd v Trade Practices Commission,[32] that the breadth of s 232’s predecessor had the effect of allowing injunctions to be granted ‘in circumstances where, under the general law, there ordinarily would be a good answer to an application for injunctive relief’.  In the same case, Lockhart J, with whom French J agreed, observed the provision was designed to ensure that on proof of the contravention enlivening its application, ‘the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly’.[33]
  3. [224]
    Further, in Sarl v Gill,[34] Jagot, Murphy and Lee JJ, in acknowledging the power must be exercised judicially and for a proper purpose, observed ‘it is clear that such a proper purpose may extend to marking the court’s disapproval of the conduct of the contravenor’.

An injunction is not precluded by the availability of damages

  1. [225]
    These considerations highlight that injunctive relief, pursuant to s 232, is not constrained by the same principles which confine courts’ consideration of injunctions as a form of relief in equity and at common law.  
  2. [226]
    For example, in the auxiliary jurisdiction it is a well-established principle that an injunction ought not be granted if damages are an adequate remedy for the actionable wrong.[35] It was not contended there is anything in s 232 or the nature of the contraventions of the Australian Consumer Law to suggest that principle applies here.  Nor did the developer submit that it does. That said, it is logically relevant in considering whether to grant a s 232 injunction, where an injunction and damages each present as appropriate potential forms of alternative relief, to weigh the comparative appropriateness of those remedies as forms of relief against the adverse consequences caused by the contravention.

The developer relies on considerations apt to a contract case 

  1. [227]
    The focus of the developer’s counsel in arguing against an injunction was the contention the buyers are trying to gain more than they are contractually entitled to.  It was submitted that in seeking such an injunction the buyers are trying to outflank the law of contract, drawing on the broad terms of the power to grant injunctions, to obtain an expectation interest they did not never ever have in any contractual sense.  It was submitted the injunction would give the buyers more than they contracted for and is beyond the compensatory character of the statute, which is not directed towards effectively re-writing parties’ private contracts.
  2. [228]
    It is to be appreciated, despite the emphasis in those submissions upon contractual entitlement or expectation, that the foundation for the relief here is not a breach of the conditions of the contracts for the sale of the lots.  The foundation is a contravention of laws of fair dealing by the developer in inducing the buyers to enter into the contracts.  

The focus is on the developer’s inducing conduct

  1. [229]
    It is not to point that, as the developer’s counsel submitted, the buyers could have tried to implement the expectation that their lots would adjoin and overlook parkland by contractual condition.  Had they done so, it was submitted, they would have risked the developer declining to enter into the contract and instead opting to sell ‘to somebody else who wasn’t so insistent’.  That submission overlooks that it was the buyers who would have been declining to enter into the contracts if they knew of the developer’s deceit.
  2. [230]
    Compare this scenario for example:  Let it be assumed that prior to the sales there was no approach from Council about giving the land behind the lots back and that, as far as the developer knew and intended, that land would not become residential development and would be parkland, as per the existing development approval.  Then, after the sales, the Council made its approach and the developer consequently decided to pursue a change of use in order to develop the land.  There would have been no misrepresentation, no breach of contract, and the buyers would probably be stuck without remedy for the disappointing loss of their lots’ valuable rear aspect.  Those post sale events would have fallen into the category of the ever-present risk that some future lawful change may occur in the use to which neighbouring land may be put.  
  3. [231]
    In that scenario the buyers were still induced into paying a high market value because of the parkland aspect as represented, but they would have been true representations.  In the present case they were knowingly false.  The developer knew, but did not want prospective purchasers to know, that it was planning to turn the parkland aspect in residential development.  It did not want them to know because they would not pay as much and it would not profit as much.  The buyers have ended up stuck with ownership of property they would not have bought but for the developer’s contraventions of the law.

The injunction is restorative only

  1. [232]
    By the proposed injunction the buyers effectively seek to be restored to the status quo which the developer led them to believe would prevail when it induced them to buy the lots – that the land at the rear would, for the foreseeable future, be vacant grassland or parkland.   The injunction does no more than that.  It leaves the developer in the same position it was in when it made the representations which induced the purchases. It would remain in possession of the land, unable to use it other than as vacant grassland or parkland, and only able to divest ownership of it to Council for dedication as parkland.  Beyond that, the buyers will have no greater assurance of what the future holds than any landowner does.  There will remain the ever-present risk that some future lawful change may occur to the use to which neighbouring land may be put.

The injunction is consistent with the statutory scheme

  1. [233]
    The deployment of an injunction to that end, effectively as a restorative mandatory injunction, is not, as the developer argued, at odds with the statutory scheme.  The relief available under the Australian Consumer Law is evidently more than merely compensatory.  Its broad injunctive powers empower courts to craft protective and restorative relief.  As just explained, the injunctive relief proposed here is calculated at restoring the buyers to the position prevailing at the time of sale as represented by the developer.  The proposed injunction would have that effect in that at the time of the lots’ sales (all prior to the change of conditions of 8 November 2019), the developer could not develop the land at the rear of the lots which was to be received by Council as dedicated parkland.

An injunction is more appropriate and adequate relief than damages here

  1. [234]
    There will be cases in which an injunction’s side effects on third parties detract from its appropriateness as a form of relief.[36] The injunction will deliver an outcome impacting the interests of the other two lot owners in Newland St who played no part in this proceeding.  That impact will be the preservation of their parkland aspect at the rear.  It is unlikely those owners would prefer that the rear of their lot their adjoin and overlook a residential development rather than vacant grassland or parkland.  
  2. [235]
    In weighing the relative appropriateness of an injunction as compared to damages in the present case I was conscious that the simplicity of an award of damages may in some cases, assuming a defendant is pecunious, deliver a higher degree of certainty of outcome than an injunction.  
  3. [236]
    I was concerned an injunction would leave the developer with a greater burden than it had before it secured the change of use, effectively burdened with the obligation of owning land without the assurance of Council being obliged to receive it as dedicated parkland.   However, Council advised by exhibited correspondence of 19 June 2024, that it does not oppose the terms of the amended injunctive relief sought.  It advised it was willing to receive the land as parkland ‘conditional upon the satisfaction of development conditions’ pertaining to the land which ‘are no more onerous’ than those prevailing per the former development approval of 10 December 2015.  
  4. [237]
    An associated potential source of uncertainty is the possibility of some inconsistency in the injunction with the public interest as protected by orders of the Planning and Environment Court.[37] That is not a material concern here given the changes made by that court’s orders of 8 November 2019 required no notice to the public or lot owners that they were being sought.  It may be necessary, in connection with the developer’s use and the Council’s receipt of the parkland as contemplated by the injunction, to apply to the Planning and Environment Court to obtain a change of use to amend development conditions.  That possibility was not expressly contemplated by Council’s letter or raised by the parties.  In any event, it is within the control of the developer to apply for such a change if needs be.  Given Council’s co-operative position and the emergence of the truth through this litigation, it is likely such an application would succeed.  There is thus no basis for material concern about uncertainty on that front.
  1. [238]
    A related certainty consideration is that the developer’s obligations under the existing development approval, as they relate to the land’s use as part of the whole of the development, may intersect or overlap in connection with some particular use of the land at the rear of the lots.  For example, a use of the land not contemplated by the existing terms of the proposed order may be the installation or maintenance of the development’s underground water and sewerage infrastructure.  This prospect was not raised as an issue by the parties.   I am prompted to think of it because it was a topic which arose in the era when Council was working through the detail of its preparedness to support the change of use under which it would no longer receive the land as dedicated parkland.  It may be a stale issue now.  However, if such use by the developer is needed to avoid compromising the developer’s broader obligations under the development approval, there is no reason why it cannot be adequately catered for with certainty by the insertion of appropriately targeted words of exception in the injunction.  To that end any orders granting the proposed injunction could give the parties liberty to apply for the inclusion of additional appropriate exceptions within the bracketed terms of the injunction.   
  2. [239]
    In the upshot, given Council’s position, it is apparently certain that the injunction will be able to deliver the outcome intended without problematic side effects. 
  3. [240]
    On the other hand, as later explained in my reasons quantifying damages, the process of assessing damages here is attended with much uncertainty and a risk if not likelihood of under compensation.  Indeed, the developer’s counsel argued against some damage’s components, particularly relating to building costs, on the basis the chain of causation was remote and infected with many variable influences.  The risks of under compensation will be particularly obvious in the consideration below of the capital value loss.  
  4. [241]
    I am conscious the injunction will deprive the developer of the opportunity to profit from developing the land at the rear of the lots.  However, that does not make the relief oppressive, or materially more oppressive than the financial impact of an award of damages.  It must not be overlooked the developer has already profited from its contravening representations by receiving a materially higher sale price from buyers than would have been achieved but for its deceit.  The fact is either remedy, an injunction or damages, would carry adverse consequences for the developer, but they are consequences of the developer’s own wrongdoing.  
  5. [242]
    A disadvantage of an award of damages in the present case is that it would only compensate the buyers to equate with them having acquired their lots for their lesser real value.  Yet, but for the contraventions, they would never have bought the lots  at all.  Damages are inadequate to restore the buyers to that position.  Conversely an injunction is adequate to restore the buyers to the position the developer represented they would enjoy in inducing them to purchase the lots.  
  6. [243]
    What better remedial connection could there be as between the contravening representations and the relief, than that the relief will force the developer to honour the promise inherent in what was represented, namely that the lots would adjoin and overlook parkland?  This alignment of contravention and remedy demonstrates the injunction sought is, in the circumstances of this case, a more adequate form of relief than damages and is an appropriate form of relief to order.  
  7. [244]
    The injunction should be granted.  
  8. [245]
    That result will mean there will be no order as to damages.  However, I am obliged to now cater for the possibility of error in reaching that result by proceeding to determine what damages I would have ordered had I not decided to grant the injunction.

8.What is the quantum of the damages suffered by the buyers?

  1. [246]
    Section 236 Australian Consumer Law provides a claimant may recover the amount of the loss or damage suffered ‘because’ of conduct by another contravening provisions including ss 18 and 30.
  2. [247]
    It is therefore essential that the loss claimed was caused by the contravention.  

The two types of loss

  1. [248]
    In the present case there are two general categories of loss said to have been caused by the contraventions.  
  2. [249]
    One I will describe as purchase loss.  It is the gap between what was paid for the land on the understanding it would adjoin and overlook parkland and what its real value would have been if it was known the land at the rear was intended to be developed rather than left as parkland.[38]  
  3. [250]
    The other category of loss, I will describe as capital value loss.  It relates to the gap between the improved value component of a buyer’s lot value and what the buyer spent in building on the lot in the understanding the lot would adjoin and overlook parkland.  The essence of that loss is over-capitalisation.  It is a loss claimed by the buyers of lots 119 and 121 only.

Purchase loss

  1. [251]
    I accept that, as each buyer testified, they would not have bought their lot had they known of the developer’s actual plan for the rear of their lots.  The developer’s conduct resulted in the lots having an apparently higher market value and the misled buyers paying for that apparent value.  The expert evidence of valuers called by each side predictably confirmed the lots’ market value, as lots adjoining residential development land rather than parkland, was materially less than the buyers paid.     
  2. [252]
    The buyers of course still acquired land of inherent value, so they did not lose the amount of the land’s real value.  However, because of the developer’s conduct the buyers paid: 
    • a higher amount than the real value of the land they acquired; and 
    • stamp duty for a purchase they would not otherwise have made.  

The buyers are entitled to recoup their loss of those amounts.  Having been put out of the use of that money since settlement they are also entitled to interest on it.  

  1. [253]
    It is not to the point in assessing purchase loss that, as the valuation evidence in the case showed, the value of the lots, even as lots abutting a site of future residential development, has markedly increased since settlement.  That does not ease the loss.  It remains that the lots present market value would be even higher if abutting future parkland.  The loss the buyers suffered, in acquiring land they would not have bought but for the representations, was suffered at the time of purchase.  They of course still retain the inherent value of the land.  However, they lost the amount the developer’s misrepresentations induced them to pay beyond the real value the land would have had the truth been known.  The loss of that amount having occurred at settlement, interest should be paid upon it from then to compensate the buyers for having been put out of the use of that amount in the interim.
  2. [254]
    There is no issue as to the quantum of stamp duty which was payable.  At one stage during submissions, I queried whether the stamp duty loss was the whole of the duty paid or only a proportion of it.  But the duty is effectively a tax on the acquisition – a transfer duty.  It is not inherent in the worth of what was acquired in the way the land’s value is.  The whole of the duty was part of the real loss because the purchases and thus the payments of the duty would not have happened but for the developer’s conduct.

The valuation evidence is not far apart

  1. [255]
    The only real issue regarding purchase loss is the assessment of the real value of the lots.  It is common ground the real value here would be reflected in what the lot’s market value would have been in the era of their sale had the developer’s true plans for the land at the rear of the lots been known.  An expert valuer from each side testified about that – Trevor Gard of NPV Valuers for the buyers and Craig Myers of Herron Todd White for the developer.
  2. [256]
    Their valuations of the market value of the lots, in the era of settlement, as lots adjoining a potential residential development, rather than parkland, are reflected in this table (the final column of which reflects my below findings):

BUYERS & LOT

PURCHASE PRICE

MARKET

VALUE

TREVOR

GARD

(LOSS)

MARKET

VALUE

CRAIG

MYERS

(LOSS)

FINDING

OF REAL

VALUE

(LOSS)

Edward

Joseph

Hayes, Lot

119

$150,000

$120,000 

($30,000)

$130,000 

($20,000)

$120,000

($30,000)

Lesley Ann

Ray, Lot 124

$160,000

$135,000 

($25,000)

$140,000 

($20,000)

$137,500

($22,500)

Brian Phillip

De Graaff &

Susan Lundy

De Graaff,

Lot 122

$160,000

$135,000 

($25,000)

$140,000 

($20,000)

$137,500

($22,500)

Clement

Victor

Mance &

Jillian

Mance, Lot

120

$160,000

$135,000 

($25,000)

$140,000 

($20,000)

$137,500

($22,500)

Stephen

John

Ducksbury

& Keran

Jane

Thomas, Lot

121

$158,500

$135,000 

($23,500)

$140,000 

($18,500)

$137,500

($21,000)

  1. [257]
    As the table shows, both valuers assessed a material difference between the purchase price and the market value.  Mr Gard assessed a slightly lower market value than Mr Myers, in each instance.  Except for lot 119, the difference is only $5,000.  I say ‘only’ of the $5,000 gaps because in the context of real estate prices $5,000 is not a particularly striking difference.   It is the difference between the market value having been about 87.5 per cent or 84.4 per cent of the price actually paid.  
  2. [258]
    There is a greater difference of $10,000 for lot 119.  There are more variables influencing lot 119’s value.  Lot 119 is more triangular than the other lots, narrowing substantially downhill.  This made lot 119 more challenging to build a house on generally, and, more particularly, to maximise its view to the land behind where it was thought there would be parkland.  Also, while lot 119 had the additional advantage of no neighbours to one side, that advantage would also be lost under the now approved development use. 

There is no material concern regarding the reliability of the valuations

  1. [259]
    Mr Myers’ valuation evidence went only to the market value of the lots in 2019.  Mr Gard’s valuation reports dealt with value both in 2019 and 2024, the latter being pertinent to assessing the improved value of lots 110 and 121 to aid in assessing capital value loss.  That raises a temporal tension addressed below in considering capital value loss.  My present interest is in 2019 values.
  2. [260]
    Each valuer deployed the comparable sales approach, also known as the direct comparison method, by which sales of comparable properties in the era in question are considered.  This approach obviously requires some allowance to be made for material variations between the properties and their location in comparison to the subject properties when explaining how the comparable information about other sales coalesces into the estimate of market value for the subject property.  Mr Gard’s report had no such explanation.  He effectively left the reader to infer from the information he gave about comparable sales why he arrived at the 2019 valuations.  
  3. [261]
    The developer’s counsel was critical of Mr Gard’s report for that reason.  While the differences in his array of sold properties and the subject properties are fairly apparent from Mr Gard’s report, they do not make it obvious how Mr Gard arrived at his 2019 market values of the lots if adjoining future residential development.  Indeed, most of the sold properties in Mr Gard’s array appear more relevant to identifying 2019 valuations for the subject properties if acquired, as they were, on the understanding the rear of the properties would not abut residential development.  But those valuations, effectively equating to the price actually paid, were not in issue.
  1. [262]
    To the extent the other properties in Mr Gard’s array appear to provide substantial inferential support for his 2019 market values of the lots if adjoining future residential development, the most relevant apparent comparator appeared to be 37 Rankine Avenue.  That 882m2 regular shaped lot on a level site, adjoining proposed new development at its rear, sold in August 2018 for $133,000.  The lot is located on the opposite side of the creek from Newland St and would be only a slightly longer walk from the village centre than Newland St.  Its sale price supports the reliability of Mr Gard’s valuations.
  2. [263]
    Despite the criticism by the developer’s counsel of Mr Gard’s lack of explanation of how the comparable information about the property sales in his array coalesced into his estimate of market values for the subject properties, Mr Myers’ explanation was itself scant.  
  3. [264]
    Mr Myers noted the purchase prices of the Newland St lots reflected the lots’ location within easy walking of the village centre, their topography being at the level of Newland St ‘resulting in the lots being easy to build on’ and the outlook ‘over vacant land to a creek’.  He also noted the effect of development at the rear would alter that outlook into one ‘over buildings and roofs’.  Mr Myers’ explanation then grouped the seven numbered sales in his array of comparable sales into two sub-sets.  
  4. [265]
    The first sub-set, sales he numbered 1 to 4,  were sales of lots within Yungaburra village Estate for between $109,000 and $126,000.  The highest two of those sales, for $110,000 and $126,000 were of properties near the above-mentioned 37 Rankine Avenue, which sold for $133,000.   Mr Myers observed the properties in sales 1 to 4 were not elevated, did not have an attractive outlook and were gently sloping though may require some retaining.  Mr Myers opined they were inferior to the Newland St lots.
  5. [266]
    The second of Mr Myers’ sub-sets, sales he numbered 5 to 7, were sales of lots for between $163,000 and $192,000.  He categorised those lots as superior to the Newland St Lots – sale 6 because of its larger lot size and sales 7 and 8 because of their larger size and superior elevation and outlook.  
  6. [267]
    Mr Myers’ report then progressed directly to stating his valuations of the subject properties.  Save for the fact his proffered valuations were above the sale prices in his first sub-set and below the sale prices in his second sub-set it is no more apparent from his report than it is from Mr Gard’s how the comparable sales information coalesced into his proffered valuations.
  7. [268]
    While the valuers’ evidence shared in this opaque quality it did not cause me concern as to the general reliability of their expert opinions; particularly given, as earlier observed, their ultimate valuations were not far apart.  
  8. [269]
    There was some attempt to undermine the reliability of Mr Gard’s opinion by highlighting he had referred to value by square metre. Mr Myers had only ever heard of value by square metre being used in the context of commercial property valuation.  However, it was clear from Mr Gard’s  evidence that such reference was not a source of valuation but an aid in checking his comparisons.
  9. [270]
    Counsel for the buyers emphasised Mr Myers conceded in cross-examination that of his array of comparable sales, his sales 1 to 4 – the first sub-set – were the most representative of the value of the Newland St lots if it was adjoining land to be developed rather than parkland.  They were for amounts less than Mr Myers’ valuation of the Newland St lots.  However, while they were more representative than sales 5 to 7, they were nonetheless inferior lots to the buyers’ lots.  It therefore does not follow from lots 1 to 4 being more comparable to the buyers’ lots that Mr Myers’ valuation is unreliable.
  10. [271]
    The only aspect of Mr Myers’ valuation which concerned me was that lot 119 has a steeper topography, and thus less appealing to build on, than Mr Myers appreciated.  That is a consideration supporting Mr Gard’s proportionately lower valuation of that lot at $120,000 as being more reliable than Mr Myers’.
  11. [272]
    As to their valuations of the other lots – $135,000 or $140,000 – I regard them as collectively indicative of a reliable range.  It is logical to adopt the mean of that range as the real value, namely $137,500.
  12. [273]
    That assessment of purchase loss, including stamp duty and interest, is as follows:

BUYERS

& LOT

REAL

VALUE LOSS

+

STAMP

DUTY

=

PURCHASE

LOSS

+

INTEREST

=

PURCHASE LOSS

DAMAGES

Mr Hayes and Ms Young,

Lot 119

$30,000

$3,675

$33,675

$10,906.04

(26.3.19 28.11.24)

$44,581.04

Ms Ray, Lot 124

$22,500

$4,025

$26,525

$8,534.47

(9.4.1928.11.24)

$35,059.47

Mr & Mrs 

De Graaff,

Lot 122

$22,500

$4,025

$26,525

$7,935.67

(9.9.1928.11.24)

$34,460.67

Mr & Mrs

Mance,

Lot 120

$22,5000

$4,025

$26,525

$7,817.39

(10.10.1928.11.24)

$34,342.39

Mr

Ducksbury

& Ms

Thomas,

Lot 121

$22,000

$3,972.50

$25,972.50

$7,579.85

(30.10.1928.11.24)

$33,552.35

  1. [274]
    If I was awarding damages rather than granting an injunction, I would order purchase loss damages as set out in the final column of the above table.

Capital value loss 

  1. [275]
    Capital value loss is claimed only in respect of lot 119, the lot of Mr Hayes and Ms Young, and lot 121, the lot of Mr Ducksbury and Ms Thomas.
  2. [276]
    The reasoning advanced in support of that alleged loss is that the buyers would not have bought, let alone built upon the land, if they had known of the developer’s true intentions.  Then, in proceeding to build in ignorance of the developer’s plan to develop the land behind their lots, they spent more money to build homes designed for a rear parkland aspect than would have been justified if building homes that were merely going to overlook residential development at the rear.    As a result of the loss of that aspect, the improved value component of their lots overall value (essentially the value added by what they built on their lots) is less than their capital expenditure on actual construction costs.  That gap, between capital value and capital expenditure, is claimed as a loss occasioned by the developer’s conduct.  
  3. [277]
    The deployment of that reasoning should aim to identify the quantum of the loss at the time it was suffered, much the same as the purchase loss was assessed above as at the time of purchase.[39]  

Uncertainty and remoteness

  1. [278]
    The developers counsel criticised this approach as fraught with uncertainty.  This went beyond its earlier discussed criticisms of the reliability of the valuer’s evidence.  It was submitted the buyers’ approach sought to burden the developer with the buyers’ independent influences and idiosyncratic choices about improvement expenditure impacting upon value which could not be reasonably isolated.  The challenge was equated to unscrambling an egg.  
  2. [279]
    However, that there is some challenging degree of uncertainty in assessing damage does not mean there was no loss to assess.  Further, as the High Court has emphasised, mere difficulty in estimating damages does not relieve trial judges of estimating damages as best they can.[40]
  3. [280]
    The developer’s counsel also argued the claimed loss, founded upon events long after sale, was too remote in its connection with the contraventions to have been caused by them.  Yet the chain of causation here appears to be straightforward.  The claimed loss:
    • flowed directly from the buyers expending money to build their desired homes on the lots;
    • which flowed directly from them having acquired lots which the developer’s representations induced them to buy;
    • in the incorrect understanding they were, by reason of the parkland aspect, lots which were an apt choice for the building of their desired home. 
  4. [281]
    Had the developer admitted to the buyers before they started to build that it had deceived them, then that chain of causation would have been broken.  But the developer chose not to do that.  
  5. [282]
    It is incorrect to regard the extent to which the buyers overcapitalised as some type of folly or loss they caused to themselves because they would not recoup what they spent on selling.  They had no plan on selling.  The developer must take its victims as it finds them.  The buyers were of mature years, building their dream home in the case of Mr Hayes and Ms Young and the house they would live out their years in, in the case of  Mr Ducksbury and Ms Thomas.  Even if there had been no misrepresentation and the parkland aspect were to remain, it is likely they would have overcapitalised.  After all, they were entitled to indulge themselves with the homes they wanted to build.  But it turns out they each overcapitalised on a lot they would never have  bought, let alone built their expensive home on, but for the contravening representations.
  6. [283]
    The buyers should be compensated for their capital value loss so that they are restored to the position they would otherwise have been in of being able to apply their funds to building their dream home or retirement home on a property with the valuable qualities they were led to believe their Newland St lot would have.  The only qualification upon that reasoning is that, as later discussed, a proportion of the expenditure on lot 119 continued to be incurred so long after the developer’s deception had been discovered that the causal connection between it and the contravention was so tenuous as to justify a proportionate discounting of the capital value loss.

What were the lot 119 construction costs? 

  1. [284]
    The evidence of construction cost for lot 119 is contained in facts deemed admitted in an exhibited Notice to Admit Facts.  The total of construction costs asserted therein is $942,681.67.
  2. [285]
    The total construction costs in the Notice to Admit Facts span from 10 June 2019, when the design stage started, to 14 November 2022, after intermittent miscellaneous expenditures through much of 2022, including on landscaping and fencing.  
  3. [286]
    Most of the expenditure was incurred by the payment of $685,335.20 for ‘Building contractor construction costs’ on 7 December 2021.  Long prior to then there had already been substantial expenditure on design and retaining wall construction in necessary preparation for building.  The payment of 7 December apparently occurred after completion of construction, which had been well advanced on 19 February 2021 when Mr Hayes learned of the developer’s true plans. I have already found that discovery only occurred when the construction was so substantially underway, with the foundation and walls already built, that Mr Hayes and Ms Young had no realistic option other than to complete such a well-advanced construction.  
  4. [287]
    Ms Young explained that construction occurred during an era when the COVID 19 pandemic had some impact, resulting in some variations during construction.  She also did not learn of the close intended configuration of neighbours to the side of them for some further time after that, during which construction had continued.
  5. [288]
    Ms Young accepted in cross-examination that there were some discretionary variations in the latter, more cosmetic stages of construction.  There were variations totalling about $14,000 for the kitchen in the second half of 2021, the developer’s deception having been discovered in February of that year.  Ms Young explained this coincided with COVID-19 related supply issues.  
  6. [289]
    In respect of outlays for soil conditioner, turf and plants she conceded they were not the types of expenditure she was suggesting the defendant should be held responsible for and, rather, it was the construction of the house, which they could not leave incomplete, which he ought be responsible for.  
  7. [290]
    That concession was generous. The installation of landscaping as well as fencing, which cost about $40,000 is inherently part of the process of building new homes on previously vacant blocks. That the amount spent upon it was within Ms Young’s discretion does not make it any less part of her loss than any other aspect of the construction.  In a sense, it was all the product of discretionary choices.  
  8. [291]
    However, it is the timing of expenditure that was discretionary, rather than essential, in seeing through the building of the home which is problematic if it occurred, as the kitchen variations, landscaping and fencing did, long after the developer’s deception had been discovered.  Such expenditure was more remote in its causal connection with the contravention.  All of that said, such expenditure, totalling about $54,000, is about six per cent of the overall cost.  It is uncertain where the line fell between what component of that expenditure was functionally essential rather than discretionary in the process of finishing the building of a new home.  In drawing that imprecise line it would be apt to adopt a discount of five per cent of overall building costs.

What were the lot 121 construction costs? 

  1. [292]
    For lot 121, the total construction costs asserted in the Notice to Admit Facts is  $656,591.07.
  2. [293]
    The total construction costs in the Notice to Admit Facts span from 10 December 2019, when the planning stage occurred, to 5 January 2023, when, after a year and a half, there were invoices for landscaping and fencing.  Most of the expenditure was incurred by payment of $527,960 for ‘Fixed price lump sum residential building contract’ on 9 July 2020. 
  3. [294]
    It will be recalled Mr Ducksbury and Ms Thomas contracted for a construction of a house on the property in early June 2020 and the house was not completed until April 2021.  They had only learned the truth about what was to happen with the parkland in March 2021, when, as I have accepted, they had no choice but to complete construction.
  4. [295]
    No issue arises with remoteness in timing of their expenditure.

What capital value loss is contended for by the buyers? 

  1. [296]
    The evidence of the proportion of the lots’ value that is attributable to improvements upon them was provided by the buyers’ valuer, Mr Gard (the developer’s valuer Mr Myers did not give evidence as to improved values).  In light of my earlier findings, I regard Mr Gard’s valuations as reliable and will act upon them.
  2. [297]
    Mr Gard’s opinions regarding the improved value of lot 119 may be summarised as follows: 

Lot 119’s value as a lot with a single unit dwelling assuming land at the rear is:

Parkland

Residential Development

Land

(%age of Total)

Improvements

(%age of Total)

Total

Land

Improvements

Total

As at

8.2.23

$225,000

(22.96%)

$755,000

(77.04%)

$980,000

$200,000

(23.53%)

$650,000

(76.47%)

$850,000

As at

12.3.24

$250,000

(26.88%)

$680,000

(73.12%)

$930,000

 

$165,000

(20.89%)

$625,000

(79.11%)

$790,000

  1. [298]
    Those figures indicate improvements are generally valued at about 75 per cent of total value.  
  2. [299]
    It will be observed that there was apparently a drop in value as between the first and second of Mr Gard’s valuations.  The buyer’s counsel appeared content to take the most recent value as a guide.
  3. [300]
    The capital loss contended for (before interest) is advanced as:

Amount spent improving the lots $942,681.67

  1. –
    Value of lot 119’s improvements in March 2024 $625,000
  1. =
    Claimed capital loss $317, 681.67
  1. [301]
    Mr Gard’s opinions regarding the improved value of lot 121 may be summarised as follows:

Lot 121’s value as a lot with a single unit dwelling assuming land at the rear is:

Parkland

Residential Development

Land

(%age of Total)

Improvements

(%age of Total)

Total

Land

Improvements

Total

As at

8.2.23

$235,000

(23.38%)

$770,000

(76.62%)

$1,005,000

$210,000

(25.93%)

$600,000

(74.07%)

$810,000

As at

12.3.24

$260,000

(28.57%)

$650,000

(71.43%)

$910,000

$185,000

(22.98%)

$620,000

(77.02%)

$805,000

  1. [302]
    Again, note those figures indicate improvements are generally valued at about 75 per cent of total value.  
  2. [303]
    The capital loss contended for (before interest) is advanced as:

Amount spent improving the lots $656,591.07

  1. –
    Value of lot 121’s improvements in March 2024 $620,000 
  1. =
    Claimed capital loss $36, 561.07.

The temporal issue

  1. [304]
    There is significant temporal imprecision inherent in calculating loss by comparing the amount spent improving the lots some years ago with an improvement’s valuation of this year.  On the face of it such an approach is likely to result in undercompensation.  
  2. [305]
    Based on the evidence of land values in this case it may safely be inferred the value of the lots some years ago, when the improvement expenditures incurred, would have been materially less than their 2024 values, with the logical consequence that improvement values would have been less.  It must follow that the capital loss, when it was incurred, that is, the gap between the amount spent improving the lots and the improved value at that time, would be materially greater than the capital loss contended for.  
  3. [306]
    Some admittedly imprecise estimates can be made about that.  In the case of lot 119, the bulk of the capital expenditure had occurred by 7 December 2021.  It is a fair date to adopt as the date of loss in this imprecise exercise.  I have found the land’s value, assuming it was known the land was destined for residential development, was $120,000 as at 26 March 2019 (settlement).  It was valued at $165,000 on 12 March 2024, $45,000 more than five years earlier.  It may be accepted the progressive increase in valuations would not have been entirely even, but the 2024 value was less than the 2023 value, so adopting an even rate of increase is unlikely to result in an over-estimate.  Assuming such an even rate of increase, the likely land value as land destined for residential development as at 7 December 2021 (32 months after settlement, which was 60 months before March 2024), would have been about $120,000 + (32/60 x $45,000 i.e. $24,000) = $144,000.  
  4. [307]
    Adopting the average 75per cent which improvements seem to hold vis-à-vis overall value in Mr Gard’s valuations would mean the improved value component of the land as at 7 December 2021 would have been $144,000 x 3 = $432,000.  Deducting that amount from the $942,681.67 spent on improving the lot would give a capital loss of $510,681.67.  That is $193,000 more than the claimed loss of $317, 681.67.  
  5. [308]
    In the case of lot 121, the bulk of the capital expenditure had occurred by 9 July 2020.  It is a fair date to adopt as the date of loss in this imprecise exercise.  I have found the land’s value, assuming it was known the land was destined for residential development, was $137,500 as at 30 October 2019 (settlement).  It was valued at $185,000 on 12 March 2024, $47,500 more than about four years and four months earlier.  It may be accepted the progressive increase in valuations would not have been entirely even, but the 2024 value was less than the 2023 value, so adopting an even rate of increase is unlikely to result in an over-estimate.  Assuming such an even rate of increase, the likely land value as land destined for residential development as at 9 July 2020 (8 months after settlement, which was 44 months before March 2024), would have been about $137,500  + (8/44 x $47,500 i.e. $8636.36) = $146,136.36.
  6. [309]
    Adopting the average 75per cent which improvements seem to hold vis-à-vis overall value in Mr Gard’s valuations would mean the improved value component of the land as at 9 July 2020 would have been $146,136.36 x 3 = $438,409.08.  Deducting that amount from the $656,591.07 spent on improving the lot would give a capital loss of $218,181.99.  That is $181,620.92 more than the claimed loss of $36, 561.07.
  1. [310]
    Even allowing for the imprecision inherent in the above exercise it demonstrates that the claimed capital loss is substantially less than the likely capital loss which the owners of these two lots incurred at the time of the expenditure.  The gap is far greater than the equivalent of the five per cent remoteness discount I would have applied for lot 119, so it need not apply.  

What capital value loss should be awarded?

  1. [311]
    The upshot is that because the capital value loss claimed is likely substantially less than the real capital loss caused by the contraventions it is uncontroversial that it be awarded.  Interest should be applied from the dates identified above by which most of the expenditure had been incurred. 
  2. [312]
    The assessment of capital value loss is as follows: 

Buyers & Lot

Capital Value

Loss Before

Interest

Interest

Capital Value Loss

Mr Hayes & 

Ms Young Lot 119

$317,681.67

$63.409.73

(7.12.21-28.11.24)

$381,091.40

Mr Ducksbury &

Ms Thomas Lot 121

$36,561.07

$9,441.16

$46,002.23

9.What if any exemplary damages should be awarded? 

  1. [313]
    I have found that the buyers made good their case in deceit.  That finding enlivens the power to justify an award of exemplary damages.

Exemplary damages should punish and deter

  1. [314]
    Exemplary damages are parasitic in the sense they cannot be awarded unless the host claim in tort for compensatory damages has been made out.[41] There is no requirement of proportionality as between compensatory and exemplary damages.[42] Exemplary damages are designed to punish the wrong doer and deter others from like conduct.[43]  To fulfil that purpose they must not merely irritate, they must sting,[44] and do so in a way likely to deter the wrongdoer from committing like conduct again and to deter others tempted by the financial return of such wrongdoing.

Punishment is deserved 

  1. [315]
    The developer could easily have avoided deceiving prospective buyers to their financial detriment by making one of two honest choices after the Council indicated it would support a change of use by which the developer would get to keep the land behind Newland St and develop more residential lots on it.  It could have said it would not seek such a change and continued to market the lots and profit fairly on their sales by receiving a sale price reflecting the valuable aspect the lots would have in adjoining and overlooking parkland.  Alternatively, it could have planned for and pursued the change of use, as it did, but disclosed to prospective buyers that it intended to develop the land at the rear and was going to implement that intention by an application for change of use which Council supported.  It would consequently have made less profit on the lots’ sales but on the other hand it was going to enjoy the windfall opportunity to make substantial profit from sales of lots on land which was to have been dedicated as parkland.  
  2. [316]
    Instead of making either of those choices the developer made a third choice, deploying fraudulent deception to try and profit both ways.  In contumelious disregard of the buyers’ interests it obtained the payment of higher purchase prices for the Newland St lots than would be paid if the truth of the developer’s profit driven plans to develop the parkland were known.  It is conduct deserving of financial punishment.

Deterrence is called for

  1. [317]
    Property developers are in a position of considerable advantage over prospective purchasers of lots in their developments, particularly where, as here, the development is a work in progress.  Many developers will be possessed of information about the intended future form of their development which prospective buyers will not know if it is not disclosed, and which buyers will not know they are being misled about if the developer gives them false or misleading information.  It is an area of commercial enterprise in the which the courts should be astute to deter developers from succumbing to the tempting opportunity to profit by deception of prospective buyers as this developer did.

Consideration of the commercial context assists

  1. [318]
    In the initial formulation of plans for the proposed stage 10B by the developer’s Mr Papas, the proposed configuration variously involved 11 or nine new lots.  The developer’s most recent known planning is a 10-lot configuration, with lots abutting the rear of all of the Newland St lots as well as the side of lot 119 (the Hayes and Young lot) as discussed above.
  2. [319]
    Mr Rankine unconvincingly asserted he did not know if being prevented from developing stage 10B would keep the developer out of any substantial profit.  With some reticence, Mr Rankine estimated development lot sales generally returned a profit ranging between $20,000 to $40,000 per lot, with variation as between stages and associated infrastructure costs.  He accepted there was nothing particularly unusual about stage 10B that would take it out of that general range.  Given Mr Rankine’s apparent reticence to make factual concessions in evidence against the developer’s interest, that range was likely a conservative estimate.
  3. [320]
    The buyers’ counsel submitted, adopting the higher end of the range, that for the presently intended 10-lot configuration of stage 10B that would translate to an approximate profit range of $400,000.  It was submitted that such an amount should also be the amount of exemplary damages awarded. 
  4. [321]
    Of course the scale of an exemplary award of damages must be apt to the commercial context of the wrongdoing.  The scale of the benefit to be gained by the wrongdoing logically informs the assessment of an award which carries sufficient deterrent sting, but is not disproportionate to the circumstances of the case.
  5. [322]
    By its deceit the developer was doubtless motivated to preserve a profit in the higher end of the above profit range, that is, 5 x $40,000 = $200,000 profit.  In so doing he was simultaneously motivated to profit from developing and selling a further 10 lots, which, even if sold at the mid-point of the above range, would be a profit of $10 x 30,000 = $300,000 profit.

An award of $250,000 meets the purposes of exemplary damages here

  1. [323]
    Reflection on the commercial scale of the circumstance in which the developer’s wrongdoing occurred suggests the award urged by the buyers risks exceeding a response apt to that scale and circumstance.  In my conclusion an award fit to meet the purposes of exemplary damages (but not do more than that) should be $250,000.  
  2. [324]
    I would award exemplary damages in the amount of $250,000, one fifth each thereof ($50,000) to be paid to each of the five plaintiffs and represented parties.

10.Conclusion and Orders

  1. [325]
    I have concluded that the injunction sought by the plaintiffs and represented parties should be granted.
  2. [326]
    If I was wrong in that conclusion I have concluded that I would award damages consisting of damages for purchase loss, capital value loss and exemplary damages as follows:

Purchase Loss Damages

Capital Value Loss Damages

Exemplary Damages

Total

Damages

Mr Hayes (personal

representative) &

Ms Young,

Lot 119

$44.581.04

$381,091.40

$50,000

$475,672.44

Ms Ray,  Lot 124

$35,059.47

–––

$50,000

$85,059.47

Mr & Mrs De

Graff,

Lot 122

$34,460.67

–––

$50,000

$84,460.67

Mr Mance, Lot 120

$34,342.49

–––

$50,000

$84,342.39

Mr Ducksbury &

Ms Thomas,

Lot 121

$33,552.35

  $9,441.16

$50,000

$92,993.51

$822,528.48

  1. [327]
    My orders are:
    1. Judgment for the plaintiffs (and their represented parties).
    2. The first defendant is restrained from:
      1. developing or using for any purpose other than parkland or vacant grassland, that portion of Stage 10B of the Yungaburra Village Estate which was denoted as ‘Park’ in the 24 July 2009 approval granted by the Planning and Environment Court on 10 December 2015 in Proceeding 195 of 2015 (“the Stage 10 Park”);
      2. transferring or disposing of its interest in the Stage 10 Park other than by transfer to the Tablelands Regional Council for the purpose of dedication of parkland (having first obtained any necessary court orders to legally do so);

(except with the written agreement of the owners from time to time of lots 119, 120, 121, 122, and 124 on SP 252415).’

  1. The parties have liberty to apply at 10am 13 December 2024 (having given two working days’ notice in writing) for the inclusion of any additional appropriate terms of exception within the bracketed terms of the injunction in order 2. 
  2. I will hear the parties as to costs at 10am 13 December 2024.

Footnotes

[1]Pursuant to r 75 Uniform Civil Procedure Rules 1999 (Qld).

[2]Tablelands Regional Council had initially been named as a third defendant but the claim against it was discontinued before trial.

[3][2011] QSC 80, [129]-[130].

[4]Mark Bain Constructions Pty Ltd v Avis; Mark Bain Constructions Pty Ltd v Barnscape Pty Ltd [2012] QCA 100, [15]-[20].

[5](1882) 22 Ch Div 194, 199.

[6]Competition and Consumer Act 2010 (Cth), Schedule 2.

[7]Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, [39].

[8]Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, [197], [216].

[9]Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31.

[10]Per s 30(1)(e).

[11]See for example Musca v Astle Corporation 80 ALR 251, 263-268.

[12](1889) 14 AC 337, 374.

[13]Briginshaw v Briginshaw (1938) 60 CLR 336.

[14](1889) 14 AC 337, 374.

[15](1889) 14 AC 337, 374.

[16](2006) 226 CLR 551, [114].

[17]Watts and Reynolds, Bowstead and Reynolds On Agency, 23rd Ed, p 566.

[18]Suncoast Pastoral Company Pty Ltd v Coburg AG (No 2) Pty Ltd & Ors [2012] QSC 157, [49]-[50].

[19]Citing Edelman J in Lewis v Australian Capital Territory (2020) 271 CLR 192, [178].

[20]As Mr Philp KC then was.

[21]Thompson v Australian Capital Television (1996) 186 CLR 574, 580.

[22]The rule in Brinsmead v Harrison (1872) LR 7 CP 547.

[23]Duck v Mayeu [1892] 2 QB 511.

[24](1996) 186 CLR 574.

[25]Morgan v Trevor Edward and Karen Margaret Howell t/a HHH Contractors & Anor [2011] QSC 165.

[26][2011] VSC 297, [183].

[27](2018) 54 VR 174.

[28](1996) 186 CLR 574.

[29]As to the latter see, Lavan v Toppi (2015) 254 CLR 459, [36]-[37], which was similarly relied upon by the developer’s counsel.

[30]Thompson v Australian Capital Television (1996) 186 CLR 574, 608.

[31]Baxter v Obacelo Pty Ltd (2001) 205 CLR 635, [38].

[32](1992) 38 FCR 248, 267.

[33]ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248, 256.

[34](2021) 387 ALR 494, 698.

[35]Smethurst v Commissioner of Police (2020) 272 CLR 177, [75].

[36]Eg Eckford v Six Mile Creek Pty Ltd (No 2) [2019] FCA 1307, [364].

[37]Lawrence v Fen Tigers Ltd [2014] AC 822, [158], [161].

[38]Sometimes called the rule in Potts v Miller (1940) 64 CLR 282.

[39]Bennett v Elysium Noosa (2012) 202 FCR 72.

[40]Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64.

[41]XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, 468-469.

[42]XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, 471.

[43]Gray v Motor Accident Commission (1998) 196 CLR 1, [15].

[44]Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298, [254].

Close

Editorial Notes

  • Published Case Name:

    Ducksbury v Cairns Plywoods Pty Ltd

  • Shortened Case Name:

    Ducksbury v Cairns Plywoods Pty Ltd

  • MNC:

    [2024] QSC 296

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    28 Nov 2024

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640
2 citations
Jump To
Cite 1 - (2013) 250 CLR 640
Cite 2 - (2013) 250 CLR 640
Associated Retailers Ltd v Toys Unlimited Pty Ltd [2011] VSC 297
2 citations
Jump To
Cite 1 - [2011] VSC 297
Cite 2 - [2011] VSC 297
Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
3 citations
Jump To
Cite 1 - (1992) 38 FCR 248
Cite 2 - (1992) 38 FCR 248
Cite 3 - (1992) 38 FCR 248
Avis v Mark Bain Constructions Pty Ltd [2011] QSC 80
2 citations
Jump To
Cite 1 - [2011] QSC 80
Cite 2 - [2011] QSC 80
Baxter v Obacelo Pty Ltd (2001) 205 CLR 635
2 citations
Jump To
Cite 1 - (2001) 205 CLR 635
Cite 2 - (2001) 205 CLR 635
Bennett v Elysium Noosa Pty Ltd (in liq) (2012) 202 FCR 72
2 citations
Jump To
Cite 1 - (2012) 202 FCR 72
Cite 2 - (2012) 202 FCR 72
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Brinsmead v Harrison (1872) LR 7 CP 547
2 citations
Jump To
Cite 1 - (1872) LR 7 CP 547
Cite 2 - (1872) LR 7 CP 547
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
2 citations
Jump To
Cite 1 - (1991) 174 CLR 64
Cite 2 - (1991) 174 CLR 64
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
2 citations
Jump To
Cite 1 - (1992) 39 FCR 31
Cite 2 - (1992) 39 FCR 31
Derry v Peek (1889) 14 AC 337
4 citations
Jump To
Cite 1 - (1889) 14 AC 337
Cite 2 - (1889) 14 AC 337
Cite 3 - (1889) 14 AC 337
Cite 4 - (1889) 14 AC 337
Duck v Mayer [1892] 2 QB 511
2 citations
Jump To
Cite 1 - [1892] 2 QB 511
Cite 2 - [1892] 2 QB 511
Eckford v Six Mile Creek Pty Ltd (No 2) [2019] FCA 1307
2 citations
Jump To
Cite 1 - [2019] FCA 1307
Cite 2 - [2019] FCA 1307
Gray v Motor Accident Commission (1998) 196 CLR 1
2 citations
Jump To
Cite 1 - (1998) 196 CLR 1
Cite 2 - (1998) 196 CLR 1
Harplex Pty Ltd v Konstandellos (2018) 54 VR 174
2 citations
Jump To
Cite 1 - (2018) 54 VR 174
Cite 2 - (2018) 54 VR 174
Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298
1 citation
Jump To
Cite 1 - (2003) 56 NSWLR 298
Lavin v Toppi (2015) 254 CLR 459
2 citations
Jump To
Cite 1 - (2015) 254 CLR 459
Cite 2 - (2015) 254 CLR 459
Lawrence v Fen Tigers Ltd (2014) AC 822
2 citations
Jump To
Cite 1 - (2014) AC 822
Cite 2 - (2014) AC 822
Lewis v Australian Capital Territory (2020) 271 CLR 192
2 citations
Jump To
Cite 1 - (2020) 271 CLR 192
Cite 2 - (2020) 271 CLR 192
Magill v Magill (2006) 226 CLR 551
2 citations
Jump To
Cite 1 - (2006) 226 CLR 551
Cite 2 - (2006) 226 CLR 551
Mark Bain Constructions Pty Ltd v Avis [2012] QCA 100
2 citations
Jump To
Cite 1 - [2012] QCA 100
Cite 2 - [2012] QCA 100
Morgan v Edward [2011] QSC 165
2 citations
Jump To
Cite 1 - [2011] QSC 165
Cite 2 - [2011] QSC 165
Mullens v Miller (1882) 22 Ch Div 194
2 citations
Jump To
Cite 1 - (1882) 22 Ch Div 194
Cite 2 - (1882) 22 Ch Div 194
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
2 citations
Jump To
Cite 1 - (1982) 149 CLR 191
Cite 2 - (1982) 149 CLR 191
Potts v Miller (1940) 64 CLR 282
2 citations
Jump To
Cite 1 - (1940) 64 CLR 282
Cite 2 - (1940) 64 CLR 282
Sarl v Gill (2021) 387 ALR 494
2 citations
Jump To
Cite 1 - (2021) 387 ALR 494
Cite 2 - (2021) 387 ALR 494
Smethurst v Commissioner of Police (Cth) (2020) 272 CLR 177
2 citations
Jump To
Cite 1 - (2020) 272 CLR 177
Cite 2 - (2020) 272 CLR 177
Suncoast Pastoral Company Pty Ltd v Coburg AG (No 2) Pty Ltd [2012] QSC 157
2 citations
Jump To
Cite 1 - [2012] QSC 157
Cite 2 - [2012] QSC 157
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
5 citations
Jump To
Cite 1 - (1996) 186 CLR 574
Cite 2 - (1996) 186 CLR 574
Cite 3 - (1996) 186 CLR 574
Cite 4 - (1996) 186 CLR 574
Cite 5 - (1996) 186 CLR 574
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
2 citations
Jump To
Cite 1 - (1985) 155 CLR 448
Cite 2 - (1985) 155 CLR 448

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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