Overt Concealment of the "causes of action" - Tylden Rd
Layman's synopsis
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Background
On 12th February 1980, the developer Kenneth Raymond Buchanan filed a Notice to the effect of the Thirtieth Schedule of the Local Government Act 1958 together with an 18-lot plan of subdivision which was in accord with a planning permit issued on 21st November 1979.
The Council considered this plan at its meeting of 20th February 1980 and resolved to issue a Notice of Requirement in relation to the roads shown on that plan and the water supply required to service the lots.
The Council and Buchanan then abandoned the lawful 18-lot plan of subdivision and the Council did not issue the Notice of Requirement in relation to it. Buchanan then filed and the Council accepted seven separate plans of subdivision, six of which were "contrived" to facilitate avoidance of section 9 of the Sale of Land Act 1962 and the seventh merely setting out the balance of the allotments. These "contrived" plans were all filed on 4th March 1980. These plans were filed in substitution for the 18-lot plan.
Each of these contrived plans was filed along with a manifestly unlawful supposed Notice to the effect of the Thirtieth Schedule of the Local Government Act 1958. Each of these purported Notices was in breach of s569(1) of the Act because none of them disclosed Buchanan's intention to subdivide the land into 18 lots, and this intention was known to the Council. (A Thirtieth Schedule Notice is filed with an attached plan, the plan shows the intention of the developer. s569(1) required the subdivider to give notice of his intention.)
After accepting these contrived plans, the Council then served seven separate purported Notices of Requirement, one in relation to each of the plans and each dated 20th February 1980 and each purported to relate to a plan filed on 12th February 1980 [see here]. The plan filed on the 12th February was the 18-lot plan.
Each of these seven supposed subdivisions was a separate and discrete subdivision and as such each of them were required to have a separate planning permit but no such planning permit was either applied for granted or refused.
None of the seven Notices of Requirement issued were legally enforceable. Because each plan related to a separate discrete subdivision, they each required a separate resolution of the Council to make a requirement pursuant to section 569E and no such resolution was ever made.
The Council served the seven unlawful Notices of Requirement on 6th March 1980. Then the Council sealed each of the "contrived" plans and placed an endorsement on each plan that a requirement had been made. This endorsement was a notification to the Registrar of Titles that a requirement was in place and the Registrar of Titles was prevented from approving the plans until notified that the requirement had been complied with or withdrawn.
After the Council sealed the plans I purchased 15 of the lots and provided a bank guarantee for what I understood to be Buchanan's lawful obligation to construct the roads and serviced. Had Buchanan then constructed these services no-one would have been any the wiser about the "unlawful" plans. However I had discovered that Buchanan was a crook and he had threatened to send me bankrupt. Then the Council and Water Authority began their shenanigans with respect to accepting and calling upon my bank guarantees.
After constructing the roads, the Council was left with an overrun of costs of $3,708. It elected to claim that money from me. Because I had met my full obligation under the bank guarantees, I refused to pay. The Council then issued a summons against me in the Magistrates Court.
The Council was aware of all of the foregoing and in particular that it had abandoned the 18-lot plan and had not issued a Notice of Requirement in relation to that plan and it was aware that there was no resolution relating to the various notices which were issued in relation to the "contrived" plans.
Overt concealment related to Tylden Rd by perjury, falsified documents and false admissions
The supposed Notices of Requirement issued for each of the "contrived" plans bore the reference number of the "contrived" plan to which they related. The Council had a problem, it could not say that the Notice(s) were issued pursuant to any minute of the Council so they fabricated evidence that the Notices were issued pursuant to the Council's minute of 20th February 1980 and it was this fabricated evidence which was put to the Magistrates Court.
The Council fabricated the evidence by producing the following documents to the Court:
- a plan showing the 18 lots however this plan had no identifying numbers
- a single Notice of Requirement dated 20th February 1980 bearing the plan reference number 79305/G which (according to the Notice) had been filed with the Council on 12th February 1980.
- seven "contrived" plans, each clipped in such a manner as to remove the identifying number from the bottom of the plan but each plan had a "Lodged Plan" number assigned by the Titles Office
In the Magistrates Court at Bendigo, with reference to the bundle of documents, the Council gave evidence (of present relevance) that:
- On 12th February 1980 Buchanan filed the 18-lot plan and a series of plans related to an 18-Lot subdivision with the Council.
- On 20th February the Council considered the parent 18-lot plan and had resolved to issue a Notice of Requirement on Buchanan.
- On or about 20th February 1980 the Council had issued and served the Notice of Requirement in relation to the 18-lot plan.
- The Notice of Requirement gave the Council lawful authority to hold and call upon my guarantees.
- The Council had then processed the 18-Lot plan in several parts. (stages)
This evidence included an overt representation that the Council had served a/the Notice of Requirement pursuant to its minutes of 20th February 1980 in relation to the 18-lot plan.
My defence was that the Notice of Requirement imposed a requirement to construct roads and did not empower the Council to either hold or call upon my bank guarantees. The Magistrate found against me so I appealed to the Supreme Court. The Council repeated its documentary and oral evidence before Justice Kaye. Justice Kaye found exactly as asserted by me and set aside the Magistrates Orders. [Justice Kaye's full Reasons here]
Justice Kaye's determination was that a Notice of Requirement was served pursuant to the Council's Minute of 20th February 1980 requiring construction of roads but there was no Notice of Requirement served empowering the Council to hold or call upon my bank guarantees.
Justice Kaye's determination relied upon the evidence that the Notice of Requirement had been served pursuant to the Council's Minute of 20th February 1980 in relation to the 18-lot plan.
The 1988 Tylden Rd proceeding
I then prepared a summons which claimed recovery of the money paid by me under the bank guarantees and claimed loss and damage. The proceeding was issued out of the County Court.
The initial Statement of Claim alleged exactly according to the evidence given by the Council in both the Magistrates and Supreme Courts and exactly as understood by Justice Kaye and of relevance for the present purpose:
- At paragraph 4 - On or about 12th February 1980 Buchanan filed notices. .......
- At paragraph 7 - On or about 20th February 1980 the Council served a Notice of Requirement requiring the construction of works.....
There was no allegation whatsoever as to bad faith or the state of mind of either the Council or Water Authority. This was an action based in mistake of law.
The Council and Water Authority filed a joint defence. In that defence, the Council admitted to paragraph 4 and both the Council and Water Authority admitted to paragraph 7. They thereby re-asserted the evidence given in the Magistrates Court and Supreme Court and, in particular that the Council had served the Notice of Requirement in relation to the 18-lot plan.
The Council then purported to make discovery (make available) of documents relevant to the proceeding. They discovered the exact same set of documents as had been given in evidence in the Magistrates Court. None of the discovered documents conflicted with the evidence given in the Magistrates Court or the admissions made in their joint defence.
These discovered documents did not reveal that the Notice of Requirement related to the 18-lot plan had not been served.
They did not make available any Thirtieth Schedule Notice(s), so I obtained court orders to force further discovery and in particular discovery of the thirtieth schedule notices related to the Council's Minutes of 20th February 1980. The Council made a supplementary affidavit of documents and made available five Thirtieth Schedule Notices. Three of these were related to the industrial land. The third was dated 12th February 1980 and the fourth was dated 4th March 1980. Included was a copy of the 18-lot plan with the words "original sealed" and an indiscernible date [top left of page] and the Notice dated 4th March 1980 had the handwritten words "Note:- Plan submitted in 5 sections, 30th schedules all identical to this" [see bottom of page] on it.
These discovered documents together with the admissions to paragraph 7 did nothing but overtly repeat and re-assert the evidence given in the Magistrates Court and Supreme Courts. This was that the Council had served a Notice of Requirement in relation to the 18-lot plan and pursuant to its Minute of 20th February 1980 and that the Council then processed the 18-lot plan in several parts or stages.
Discovery had revealed that the "fabricated" series of plans were in fact filed with the Council on 4th March 1980 and not on 12th February 1980 as said in evidence and admitted by the Council.
This meant that the series of plans had not even been filed when the Council resolved to issue the Notice of Requirement for the 18-lot plan.
After further discovery, I compiled the document entitled "Book of Pleadings". Of significance, this document sets out that the series of "contrived" plans did not facilitate avoidance of section 9 of the Sale of Land Act as intended by Buchanan. It also sets out that, in addition to the Notice of Requirement served in relation to the 18-lot plan, the Council had also served a separate Notice of Requirement in relation to each of the "contrived" plans. At this time I fully believed that the Notice of Requirement for the 18-lot plan had been served so each of the other Notices were of no consequence because they were superfluous to the Notice served in relation to the 18-lot plan and
In the intervening period, the Council and Water Authority had filed an Amended Defence and Re-Amended Defence and at their respective paragraphs 7 both documents again admitted to having served the Notice of Requirement in relation to the 18-lot plan on or about 20th February 1980.
Because of the admissions and the documents discovered My barrister and I remained of the firm belief that on or about 20th February 1980 the Council had served the Notice of Requirement related to the 18-lot plan. There was no evidence at all to the contrary. In this belief and understanding the Notice applied to the roads set out on that plan and which road was one and the same as the roads and part roads shown on each of the plans in the series of plans.
I then issued an Amended Statement of Claim which again alleged that on or about 20th February 1980 the Council served a Notice of Requirement in relation to the 18-lot plan but did not allege anything at all in relation to the seven other "superfluous" Notices of Requirement [details]. In their Further Re-Amended Defence, the Council and Water Authority, at paragraph 7, again admitted to having served the Notice of Requirement.
At the time of drafting the Statements of Claim in the 1988 Tylden Rd proceeding my lawyers and I were all aware that the series of "contrived" plans had been contrived by Buchanan for the purpose of avoiding section 9 of the Sale of Land Act 1962 however we also knew that they did not facilitate such avoidance. As a consequence no such allegation was made. The plans however were in breach of s.569A(1) of the Local Government Act 1958 because they did not show all of the roads or all of the allotments so this aspect in relation to the plans was specifically alleged.
In August 2000, I discovered the truth. The Council had abandoned the 18-lot plan and never did either issue or serve a Notice of Requirement in relation to that plan and had concealed this fact:
- The Council gave false evidence in the Magistrates and Supreme Courts.
- The Council admitted falsified documents into evidence in the Magistrates and Supreme Courts.
- The Council and Water Authority discovered falsified documents in the 1988 Tylden Rd proceeding.
- The Council and Water Authority made four false admissions each in the 1988 Tylden Rd proceeding.
These things constituted overt concealment, the Magistrate was deceived, Justice Kaye was deceived and I was deceived at the time of each of three proceedings in the Magistrates Court, Supreme Court and the 1988 Tylden Rd proceeding. More recently Master Efthim was also deceived but Osborn was not.
A critical concept - Was the 18-lot plan processed in several parts or did the Council abandon the 18-lot plan and process the "contrived" plans as separate subdivisions?
Whether the 18-lot plans was processed in several parts as asserted by the Council in evidence or whether the 18-lot plan was abandoned and then the "contrived" plans were processed as separate discrete subdivisions is really a question as to the Council's state of mind at the time. In either case the 18-lot plan would not be sealed and each of the "contrived" plans would have been sealed.
The Council made the representation that the 18-lot plan had been processed in several parts because at the time it was claiming against me in the Magistrates Court and it needed to show that its resolution of 20th February 1980 applied to the roads shown on the plans which were actually processed, namely the "contrived" plans. It had to do this because it had no resolution imposing a requirement on any of the "contrived" plans.
This assertion by the Council was in fact an assertion that the processing of the "contrived" plans came under the umbrella of the Council's resolutions in relation to the 18-lot plan and in particular that the resolution to issue a Notice of Requirement in relation to the 18-lot plan imposed a requirement in relation to the roads shown on the plans which were actually processed.
So long as I beleived that the Notice of Requirement in relation to the 18-lot plan had been served there was no way to show that the state of mind of the Council was anything other than as asserted by it.
The Council assured my belief and the courts belief to this effect by giving the false evidence and falsified documents as set out above and both the Council and Water Authority perpetuated this false evidence by making their false admissions during the 1988 Tylden Rd proceeding.
My discovery in August 2000 that the Notice of Requirement related to the 18-lot plan had never been served demonstrated that the Council had in fact not processed the 18-lot plan any further even to the extent of not issuing the Notice of Requirment it had resolved to issue. The Council had in fact accepted and processed the "contrived" plans as separate and discrete subdivisions independant from the 18-lot plan. It had abandoned the 18-lot plan in favour of the "contrived" plans.
So long as I believed that the Notice of Requirement related to the 18-lot plan had been issued and served then there was simply no "cause of action". The roads shown on the 18-lot plan were one and the same as the roads shown on the "contrived" plans. I manifestly could not go to court and allege that there was no Notice of Requirement relating to the roads shown on the "contrived" plans while believing that the Notice of Requirment which was believed to have issued did in fact relate to the exact same road, albeit shown on different plans.
Upon discovering that the Notice of Requirement relating to the 18-lot plan had not been issued or served my discovery included a discovery that the "contrived" plans were not processed under the umbrella of the resolutions relating to the 18-lot plan. They were in fact processed as separate and discrete subdivisions separate from and distinct from the 18-lot plan and any resolutions relating to that 18-lot plan. Exactly as intended by Buchanan according to his futile attempt to avoid section 9 of the Sale of Land Act 1962.
My discovery was not that I personally had realised that the "contrived" plans represented separate discrete subdivisions. My discovery was was that the 18-lot plan "had been abandoned by both the Council and Buchanan and not processed further. The seven plans comprising the residential series of plans were processed in subsitution." [see paragraph 53(f)(ii) of my affidavit. Text version here - pdf version here]
My discovery was expressly one of the state of mind of the Council. The state of mind being as expressed in my paragraph 53(f)(ii) and not as expressed by the Council in evidence. That it had processed the 18-lot plan in several parts.
The 1988 Tylden Rd proceeding was based upon the overtly fraudulent representations of the Council and Water Authority which had concealed the truth. The proceeding was settled without me recovering the damages caused by their fraud. The 2005 proceeding was initiated when I finally discovered the truth after more than 20 years of deception. |
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