Tylden Road
In 1980, I purchased 15 of the 18 allotments on the Tylden Rd subdivision (now Hill Drive). At that time I provided bank guarantees to the Council and Water Authority which guaranteed what I understood to be Buchanan's legal obligation to construct the roads and waterworks on the subdivision. In April 1982 I discovered that Buchanan had sold several lots twice including two of my Woodleigh Heights lots. I told him that I would go to the police. He then threatened me with violence and bankruptcy. Within weeks the Council and Water Authority began to demand that I do the works which I understood to be Buchanan's responsibility. A while later the Council and Water Authority both called up my guarantees.
Despite having forced me to pay for the roads and water, the Council and Water Authority did not do the works at that time. They did not complete them until some 18 months later. In the meantime, the financial pressure being applied forced me to sell the Tylden Rd land. The land was sold in 1983 at a substantial loss because the works were not done.
Then a couple of years later, in 1986, the Council began demanding $3,708 being the costs of the roads over and above the $25,000 guaranteed and paid by me. I refused to pay. I had fully met my guaranteed amount.
I read the law...
The Council subsequently issued a summons against me. I did not believe that the law could force me to pay more than I had guaranteed, so I purchased a copy of the Local Government Act and the Water Act and read legislation for the first time in my life. From the legislation I learned that under section 569E(1) of the Local Government Act, the Council may require the "owner" of the subdivision to do one of, to the effect, either (a) construct roads, OR (b) provide guarantees for money for the Council to construct the roads. These things were mutually exclusive and had to be set out in the Notice of Requirement served on the "owner" of the subdivision before the plans were sealed. I drove to Kyneton, and requested and was given a copy of the Notice of Requirement in question.
Several things were obvious from the law and the Notice of Requirement. Firstly I was not "the owner" of the subdivision. I was "the owner" of some of the lots in the subdivision but I was never "the owner" of the subdivision. Secondly, the Notice of Requirement required the construction of the roads, it did not provide for the bank guarantees let alone forcing me to pay the overrun of costs. I had a bullet-proof defence to the summons.
I went to Court and got my first taste of deceptive lawyers, and less than competent judicial officers. The Council's barrister represented to the Court that I was "the owner" and that the Notice of Requirement allowed the Council to accept and call on my guarantees. These representations were manifestly not true. It is interesting to note that before going into the Court I was told the Magistrate was a known "police magistrate" which meant he always came down for authority.
The Magistrate, in the face of the law and the evidence before him, found against me. He found that I was "the owner" and that I was liable for the costs of constructing the roads.
A small right over wrong...
I appealed to the Supreme Court and Justice Kaye found exactly as I had said. He found that I was not "the owner" and the Notice of Requirement was a Notice which required the developer to construct the roads, not one allowing the Council to call up my guarantee.
Justice Kaye set aside the orders of the Magistrate.
On the strength of the facts as confirmed by Justice Kaye, in 1988 I issued proceedings in the County Court to recover my money from the Council.
I also decided to issue proceedings against the Water Authority because an astonishing twist had become obvious. The Tylden Rd land was outside the Urban District of the Water Authority and therefore could not be provided with water except under an agreement and there was no such agreement. The twist was that the Water Authority forced me to pay for construction of a water supply without an agreement at about the same time as they were saying I could not have water to the Woodleigh Heights land because there was no agreement with me to provide that water.
In other words and in simple terms, the Water Authority was on one hand forcing me to pay for a water supply to Tylden Rd which did not have an agreement to make it lawful and on the other hand they were saying I could not have water to my Woodleigh Heights land because there was no agreement. These people knew exactly what they were doing and they knew it to be unlawful.
I issued the 1988 Tylden Rd proceeding in the County Court based on the exact findings of Justice Kaye in the Supreme Court which was that the Council had made a requirement requiring the owner to construct the roads and that the Notice of Requirement did not provide for the Council to hold or call upon my bank guarantees. In other words there was a "requirement" to construct roads but there was no legal "requirement" enabling the Council to hold or call upon my bank guarantees.
At the time of the Magistrates Court hearing and the Supreme Court hearing, the Council have evidence that it had served a Notice of Requirement on the owner/developer and the Magistrate and Justice Kaye and I all believed this. In the County Court I alleged that the Notice had been served and the Council and Water Authority admitted to this in their joint defence document.
A settlement of sorts...
At the time of the 1988 Tylden Rd proceeding, although I suspected a great deal, I could not show anything other than that the Council and Water Authority had made a mistake as to their authority at law. In other words, in 1980 when accepting my bank guarantees, the Council and Water Authority mistakenly believed that they were entitled to hold and call upon the guarantees, and I also mistakenly believed that to be true. The mistake of law was as much mine as theirs. Money paid and received in these circumstances is said to be "monies had and received under mistake of law". My barrister, Mr. Peter Power, said I would almost certainly get back the money paid under the guarantees, however it was most unlikely I would receive an award of damages, although it was worth including in the claim. There is far less rigmarole in the County Court than the Supreme Court, so my Barrister decided to issue the proceeding in the County Court and to limit the damages claimed to $100,000 (the limit in the County Court at that time) even though my losses were far greater than this. Two days into this proceeding, the Council and Water Authority offered $40,000 in settlement which was my $37,500 back plus a little interest. I was advised that if I persisted, I could be liable for the costs from the time of the settlement offer. I therefore accepted the offer.
In August 2000, I discovered that the Council had never served the Notice of Requirement at all. This meant that the Council had lied to the Magistrates Court and the Supreme Court and had made false admissions in the County Court to conceal the fact that it had never been served. This discovery led me to an understanding of the true basis of the fraud which had been perpetrated against me. It was that the Council had sealed the plans of subdivision in full knowledge that the services did not exist and no Notice of Requirement had been served so there was no lawful means of compelling construction of those services.
Two birds, one stone...
It was then clear that there had never been a requirement imposed upon Buchanan to construct the roads and water. The Council had sealed the plans without regard for the potential loss caused to unsuspecting purchasers if Buchanan failed to construct the roads and water. In 1982, after I had refused to sell the Woodleigh Heights land to Buchanan because he was a crook, and Buchanan had still not constructed the roads and water, they resorted to fraud to force me to pay for those roads. This killed two birds with one stone: they got the roads and water done and applied financial pressure on me to force the sale of my Woodleigh Heights land according to the "proviso".
I now knew that the 1988 Tylden Rd proceeding was a sham based entirely upon the fraudulent misrepresentations of the Council and Water Authority. They had avoided paying my damages by further fraud.
I therefore issued a new Supreme Court proceeding (the 2005 proceeding) to recover my losses on the basis that the Notice of Requirement had not been served.
Then the things now set out in the Master Efthim and Justice Osborn pages of this website occurred.
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