Utterly Corrupt Justice System of Victoria, Australia.

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Justice Osborn and Section 9 of the Sale of Land Act

This page describes how Justice Osborn's Reasons for Judgment misrepresent the intent and effect of section 9 of the Sale of Land Act 1962. He did so for the apparent purpose of denying or making wrong my specific allegations and that the Council and Water Authority had processed "unlawful" plans intended to avoid the legislation. Osborn's misrepresentations in relation to section 9 also had the effect of ignoring, denying, concealing and/or making wrong my specific allegation that the lawyers had misrepresented the operation of section 9.

The evidence that the lawyers had misrepresented the facts and the law was squarely before Osborn. He fabricated his reasons to ignore, deny and conceal this fact. (see video for full particulars)

 

Judicial and Cultural Corruption in the Supreme Court of Victoria.

 

Layman's synopsis

  • The law required that any subdivision intended to be of three lots or more had to be approved by the Registrar of Titles before a developer could start selling lots.  The effect was to prevent developers selling blocks before services such as roads and water were complete.

  • Buchanan, the shonky developer of the 18-lot subdivision on Tylden Rd, filed a series of 2-lot plans of subdivision (i.e. less than 3 lots) thinking that he could circumvent the law, and sell some of the lots before he was legally entitled to.  Selling a few blocks illegally enabled him to raise the money to pay for the services.

  • The Council sealed the contrived 2-lot plans, knowing exactly what Buchanan was up to.
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  • In his Reasons for Judgment, Justice Osborn effectively ignores, denies, conceals and/or makes wrong the fact that the Council had sealed the plans knowing exactly what Buchanan was up to, by saying:

    • that the law was only trying to prevent a series of sales before services were complete, whereas the plain intent of the law was to prevent any sale at all;

    • that Tylden Rd was a "staged" development, whereas neither the Council nor the developer pretended it was a "staged" development – there was no "global plan", all plans were filed as separate plans, and each of these separate plans was approved on the same date; and

    • that it was a Council employee (now deceased) who endorsed the plans, whereas each plan was endorsed by Council resolution.

Background

Essential to the understanding of my proceeding and of the questions before Justice Osborn is an understanding of section 9 of the Sale of Land Act 1962 and in particular the "effect" of section 9.

This is a simple piece of legislation. In its initial form, section 9 of the Sale of land Act prevented the sale of allotments on a subdivision until such time as the subdivision had been registered, pursuant to section 97 of the Transfer of Land Act by the Registrar of Titles. As stated in simple English by Mr. Rylah, the Attorney General at the time of enactment, clause 9 of the bill "requires subdivisions to be registered in the Titles Office before land is sold". Section 9 of the Sale of Land Act was subsequently amended by inserting the words "three or more" so that the amended section 9 prevented the sale of allotments on subdivisions consisting of three or more allotments until such time as the plans had been registered.

Now of course a dishonest but mistaken way around this law was to simply file a bunch of 2-lot plans of subdivision, and this is precisely what the developer Kenneth Raymond Buchanan did, believing it would enable him to lawfully sell land before he was otherwise lawfully entitled to. His intention was to subdivide the Tylden Road land into 18 residential lots, however he didn't want the law to get in the way of sales, so he filed a series of seven plans with the Council. Six of them were 2-lot plans and the seventh plan showed the remainder of the 18 lots. These plans were contrived in the following manner. The first one showed Lot 1 and Lot E. The second one showed Lot 7 and Lot F with "NIS" (not in subdivision) marked on the area where Lot 1 was. The third one showed Lot 8 and Lot G and "NIS" in the areas where Lots 1 and 7 were, etc. Here is that series of plans. The real lots, i.e. the ones numbers 1, 2, 3 etc are marked in orange. The bogus lots, i.e. those ones marked E, F, G etc are marked in aqua. The "not in subdivision" land is marked in yellow. Watch the "NIS" land grow!

It is significant that each plan was approved by the Registrar of Titles on the same day, i.e. 28th November 1980. Buchanan once told me that he had a friend in the Titles Office. At the time I thought that Buchanan's "friend" just helped to get plans approved quickly but now I suspect this "friend" helped to get them approved without questions being asked.

Buchanan sold two of these lots on 7th February 1980 and purported to give possession on 4th March 1980 which the same day as he filed the "contrived" plans with the Council and many months prior to the plans being approved by the Registrar of Titles. If the plans of subdivisions were for genuine 2-lot subdivisions, these sales would have been legal, however the truth is that the intended subdivision was for 18 lots, which is "three or more", so the sales were in fact unlawful because section 9 of the Sale of Land Act applies to subdivisions where the "intention" is three or more lots.

It is interesting to note that these Notices of Disposition are dated at the bottom 23rd December 1980 which was nine months after they were sold but one month after the plans were approved by the Registrar of Titles. In addition, the possession date recorded on the Notices of Disposition is the same day as Buchanan filed the contrived plans with the Council.

The legislation is most simple and here we have clear evidence that Buchanan filed the series of plans with the intention and purpose of avoiding the legislation and we have evidence of at least two sales in clear breach of the law. It does not get much simpler.

Justice Osborn's "better view"?

At his paragraph 123 Justice Osborn says:

"Indeed the better view is that s.9 of the SLA was primarily directed to avoiding the possibility a series of terms contracts could come into existence, with respect to one lot in a plan of subdivision when there was no certificate of title available to that particular lot."

To support this view Justice Osborn purports to rely on "Vounard" as transcribed by him as a footnote in his Reasons.

From the legislation and from the words of Mr. Rylah and from the words of "Vounard" as transcribed by Justice Osborn, it is manifest that the purpose and effect of the legislation was to prevent any sale on a subdivision consisting of three or more allotments. It is manifest that the legislation prevented a "first sale" and an obvious corollary of that, was to prevent a "series of terms contracts" (sales). You cannot have a series of sales without having a first sale.

There are no possible grounds either from the legislation, Mr. Rylah or Vounard for Justice Osborn's "better view", it is simply nonsense.

This "better view" of Justice Osborn was set out in direct response to my submission to him of the "effect" of section 9.

This "better view" of Justice Osborn serves to ignore, deny, conceal and/or make wrong the true intent of the law and thereby facilitate Justice Osborn's assertion that the contrived plans were "effectively" stages, and thereby ignore, deny, conceal and/or make wrong the fact of the Council approving contrived plans and my submission to him.

Justice Osborn's "stages"?

Legislation is generally cohesive and sections in an act may depend upon sections in different acts to make them work. For example avoiding section 9 of the Sale of Land Act would be dead easy if there were not other provisions to prevent people lodging a bunch of 2-lot plans as occurred here. In the case of section 9 of the Sale of Land Act, the legislation which prevents such things was the Local Government Act and it is Councils which administer that Act. In the case of section 9 of the Sale of Land Act, the section which prevents avoidance is section 569 of the Local Government Act. Section 569 provides that, where a subdivider intends to subdivide land, he must give notice of his intentions together with a plan of subdivision. In this instance the intention was to subdivide the land into 18 residential allotments. Section 9 in turn applied where notice of intention to subdivide into three or more allotments was required to be given.

Buchanan was granted a planning permit to subdivide the land into 18 allotments. He then filed a Notice of Intention under section 569 of the Local Government Act together with a single plan showing all 18 allotments. The Council considered that plan at its meeting of 20th February 1980 and resolved to issue a Notice of Requirement [typo says "16" instead of "18"] which required Buchanan to construct the roads on that subdivision. Subsequently Buchanan wanted to sell the lots illegally so the Council assisted Buchanan by not processing the 18-lot plan any further and accepting seven separate section 569 Notices of Intention filed by Buchanan. Each one of these Notices was accompanied by one of the plans in the series of plans. This falsely represented his intention as being to develop seven separate subdivisions, six of which were 2-lot subdivisions. Buchanan was in clear breach of section 569 of the Local Government Act and the Council knew it.

All of this evidence was before Justice Osborn, so for the apparent purpose of ignoring, denying, concealing and/or making wrong the evidence that the Council had conspired with Buchanan, Justice Osborn said, at his paragraph 5:

"Buchanan then submitted for approval a series of plans of subdivision which were in effect stages of the previously proposed residential and industrial subdivisions" (my emphasis).

On the facts before Justice Osborn, there was not even the pretence of "stages". Manifestly staged subdivisions occur in stages spaced out in time, and each "stage" contains a number of allotments and in this case:

Justice Osborn's statement at his paragraph 5 is simply wrong.

Justice Osborn shifts the blame...

To further deny the evidence that the Council had engaged in wrongdoing, Justice Osborn said at his paragraph 6:

"A Council officer, Porter (now deceased), endorsed such plans as subject to the requirements originally imposed by Council with respect to the global plans of subdivision.......".

The truth is the Council endorsed the plans by Council resolution. Justice Osborn has no way of knowing who actually placed the rubber stamp imprint on the plans, it may have been a work experience student. Ascribing this act to a deceased person is a convenient way of shifting blame to where it cannot be acted upon.

In addition, the statement "......endorsed such plans as subject to the requirements originally imposed by Council with respect to the global plans of subdivision" is simply not true. The evidence before Justice Osborn was that the Council had accepted an 18-lot plan subdivision and made a resolution to impose a requirement in relation to that plan. Subsequently Buchanan and the Council abandoned that 18-lot plan and Buchanan instead filed seven different Notices and plans in supposed pursuance of s569(1) of the Local Government Act. Each one was a separate discreet subdivision, six of them 2-lot subdivisions. The resolution of the Council in respect to the 18-lot plan did not and could not apply to the subsequent separate and unlawful subdivisions. Buchanan then made unlawful sales because six of the subsequent plans were discrete 2-lot subdivisions intended to avoid section 9 of the Sale of Land Act. There was no "global plan" or "staged" subdivision.

The evidence before Justice Osborn was that, not only had the Council processed "unlawful" plans contrived to avoid a simplistic view of the literal provisions of s.9 of the Sale of Land Act, it had also facilitated avoidance of the "effect" of s.9. It was avoidance of the "effect" which caused the loss and damage claimed in the 2005 proceeding, not the "unlawful" plans contived to avoid a mistaken view of s.9. [details]

 


 

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