In about 1986 I got an invoice from the Council seeking $3,708.00 said to be Tylden Rd road making costs over and above the $25,000 I had provided pursuant to the Bank Guarantees, I had paid the full extent of my guarantee, I had guaranteed not a cent more than I had already paid and I refused to pay, the Council demands grew into a solicitors demand, I telephoned the Shire Engineer Wilson and asked him what gave him the right to demand more than my guarantee, he simply said, section 569E of the Local Government Act, I jumped in my car drove to Melbourne and parked about three or four car spaces from the government bookstore, I purchased a copy of the Local Government Act and a McDonalds hamburger and sat in my car and read section 569E of the Act, before I had finished the hamburger it was clear that Wilson was either a fool or he was lying, I also saw that the Water Act 1958 was relevant to the Water Authority so I then purchased a copy of that Act, a short read while I had a coke showed clearly that the Water Authority had no right to my guarantee. In relation to the Council’s demand it was clear that the Council could only demand this overrun from “the owner” and I never was “the owner” of the subdivision, that was Buchanan. As to the Water Authority I was already familiar with the water boundary shenanigans described above and on reading the Water Act it was clear that I had never entered into a Water Supply Agreement and there was no other means of me being liable. I drove immediately to Kyneton and asked for a copy of the “Notice of Requirement” required by the Act to have been served on Buchanan.
To explain a little, the Local Government Act required a subdivider to give notice of his intention to subdivide and to provide plans setting out roads etc,. Under s569E of the Act a Council may require “the owner” to construct the roads shown in the plans or to provide guarantees for the cost of the Council constructing the roads and the council had to serve upon “the owner” a s569E “Notice of Requirement” as to one or other of those things and they are not interchangeable. In addition, if requested by a water authority, in this instance the Kyneton Water Authority the Council must require “the owner” to provide evidence that he has entered into a water supply agreement with that authority, in addition the Local Government Act provides that where such a “Requirement” has been made the Council must endorse the plan to the effect that a requirement has been made and this endorsement must be made prior to sealing the plans and the Registrar of Titles is prevented from registering plans so endorsed until such time as the requirement has been complied with by “the owner” or lifted by the Council and section 9 of the Sale of Land Act prevented the sale of allotments on subdivisions consisting of three or more allotments until such time as the Registrar had registered the plans and issued titles.
It is clear and manifestly obvious that in this instance “the owner” is that person who owned the parent title prior to sealing the plans of subdivision and I never was and could never be construed to be that owner. I had merely purchased allotments after the subdivision had been completed and the Registrar of Titles had cancelled the parent title and issued new and discrete child titles.
I arrived at Kyneton and the Council’s planning officer, Ain Kuru, gave me a copy of the Notice of Requirement which had been served on “the owner”, Buchanan, he also gave me a copy of the Certified Mail receipt. The terms of the Notice were clear, “the owner”, Buchanan, had been required to construct the roads and give evidence that a water supply agreement had been entered into, nothing more. The “Requirement” manifestly was not one empowering the council to hold or call upon my bank guarantees. The Council was never entitled to hold my guarantees or construct the roads much less now require me to pay the overrun of costs. I mean it’s about a few pages of the legislation and written clearly and concisely in large font at about final year of primary school comprehension level. The relevant part of the Water Act is even less, in the absence of an Agreement the Water Authority could do nothing. I then read the Council Minutes which are by law open to the public, I discovered that the Council had lifted, withdrawn, removed what requirement there had been on Buchanan when they unlawfully accepted my Guarantee. They then falsely advised the Registrar that the “requirement” had been complied with and only then did I purchase the 15 allotments from “the owner”, Buchanan.
My defence was unassailable, I never was “the owner” of the parent property and never could have been construed to be “the owner” of that parent property, in our great Torrens Title system, the notion of owner is clear, it is the person named on the title, full stop and in the Local Government Act “the owner” is defined as the person entitled to receive the “Rack Rent” of the property.
It had taken me a McDonalds Hamburger and a bottle of Coke to learn the relevant law, Porter had been Joint Secretary for years and Graeme Wilson had been Shire Engineer for years, they must have known what they were doing when they called on my Bank Guarantees at the time that PS&R were at risk and Wilson must have be aware that he could not succeed in having me pay the costs overrun.
The Council issued a summons against me, they refused to comply with a Notice of Discovery and refused to comply with a Court order enforcing discovery . I spoke with a council officer, Mr. David Keary, in relation to this refusal and he said “It is not in interest of Council to do so”, in discussion with Graeme Wilson on the same subject he said “Council is not subject to freedom of information”, I was flabbergasted but it did not concern me, by this time I was accustomed to and enured by this corrupt Council’s crooked conduct in the face of the law and fundamental morality, all I required was the Act and the simple manifest fact I never was and never could be “the owner” and the Notice of Requirement the specific terms of which precluded the council from holding my guarantee in the first place let alone require me to pay costs overrun so I did not bother to pursue the discovery aspect further.
At the Court door when the matter was called the Barrister for the Council handed my Barrister a bundle of documents. As we went in my Barrister, Barry Fox, said that the Magistrate was a “Police Magistrate”, i.e. a Magistrate having a reputation for a predilection to coming down on the side of authority.
The bundle of Documents contained a single plan showing all of the residential allotments, it was not a plan of subdivision, it was a locality plan. It then contained a series of 7 plans of subdivision 6 of which had been contrived so that they were two lot plans of subdivision and the 7th showing the remainder of the proposed 18 allotments, one has to see these plans to believe them but I shall try and draw a word picture, the first plan showed Lot 1 and Lot B, i.e. 2 lots, the next plan showed Lot 2 and Lot C and an area marked N.I.S. (Not In Subdivision), the Lot 2 on the second plan was part of the initial Lot B and Lot C was a diminished area Lot B and N.I.S. was where Lot 1 was shown on the first plan, and so on so that each of these sequence of contrived plans depicts incrementing numeric lot numbers and incrementing alpha Lot identifiers and an increasing N.I.S. area and a diminishing area alpha Lot. While each of these contrived plans is technically a two lot plan the lots with alpha identifiers are only allotments for the purpose of the plan and there is no intention to sell them. The seventh plan had 12 allotments and two large N.I.S. areas where lots 1, 5, 6 7, 8, and 16 were shown in the first six. So, the first 6 were two lot plans specifically intended to avoid the law and the 7th plan showed the remaining 12 of the 18 lot subdivision intended by Buchanan. Each successive plan showed a road of increasing length. (PS&R filed these “clever” plans with the Titles Office.)
I recognised that these must be the plans referred to by my solicitor as having been contrived for the purpose of avoiding section 9 of the Sale of Land Act which prevents sales of allotment on subdivisions consisting of three or more allotments until such time as the plans have been approved by the Registrar of Titles. That Buchanan intended to avoid section 9 of the Act is demonstrated by the sales to the Messrs Nichols prior to the approval of the plans by the Registrar of Titles and further demonstrated by his acceptance from me of $500 for two allotments before he even owned the land and further demonstrated by this incredible series of contrived plans.
None of the plans in evidence had an identifying number apart from the number assigned by the Titles Office.
The bundle of documents also included a copy of a single Notice of Requirement.
The next series of documents were relevant Engineers Reports and Council Minutes, I won’t tediously detail them here but suffice to say that on each and every one “the owner” was expressly stated to be “K. R. Buchanan” or “K. R. & Y. R. Buchanan” including the Engineers Report recommending and the Council minute resolving to serve the Notice of Requirement on “the owner”. The Notice of Requirement served was in evidence and was addressed to K. R. Buchanan as “the owner”.
There was absolutely nothing indicating, implying, suggesting that I ever was or ever could be “the owner” and every single document on exhibit expressly stated that K. R. Buchanan was “the owner”
The Council’s corrupt Barrister Mr. Barry Phillips argued that I was “the owner” because I had provided the Bank Guarantees and that under s569E(4) of the Act “the owner” is liable for cost overruns.
My Barrister submitted that I was not and never was “the owner” and I gave evidence that I had purchased 15 allotments in December 1980 from “the owner”, Buchanan. In addition my Barrister called the Messrs Nicholls who gave evidence at this hearing that they that they had purchased their land in 1980 and had never made any complaint to or request of the council for the construction of the roadworks, they also gave evidence that they had never been called upon to make any contribution to the roadworks. This evidence gave the lie to the Council’s letter of 12th May 1982 from Porters and which was sent shortly after I confronted PS&R and which said that at least two lots had been sold and the owners had inquired of council regarding the roadworks and then demanded I do the works.
The Magistrate Mr. Connelly S.M. retired for about half an hour to consider the matter and then made judgment against me, his principal reason being that “I had purchased the land in 1980 and sold it in 1983 and was “the owner” and that I had provided the guarantees and s569E(4) empowered the Council to recover the overrun from “the owner”. He ordered that I pay the overrun plus costs.
Every single document in evidence explicitly stated that either K.R. Buchanan or K. R. & Y. R. Buchanan was “the owner”, the express evidence was that I had purchased 15 allotments from that owner, Buchanan, and the Messrs Nichols had also purchased a lot each. In the face of this evidence Barrister Philips argued that I was “the owner” and the Magistrate accepted that incredibly preposterous submission.
Every single solitary document in evidence explicitly stated that Buchanan was “the owner” The law was most clear and the “the owner” was the person who owned the parent title at the time of sealing the plans and a person who purchased allotments after the parent title had been cancelled never could be “the owner”
Assuming Barrister Philips had an intellect marginally better than an intellectually challenged gnat he knew full well that he was corruptly misleading the Court.
The Corrupt Council via its Corrupt CEO knew full well the meaning of the law. The Council and the CEO were tasked with administering that most simple legislation and the regular business of the Council was administering numerous subdivisions. The Council perjured itself.
To be as charitable as possible, Mr. Connelly S.M. must have been seriously ill and unable to think at all on that day. No competent clear thinking child of late primary school standard, not even a “police magistrate”, could have accepted the outrageously preposterous assertion by Barrister Phillips that I was “the owner”. Two of the other owners of equivalent standing except for scale had given evidence to him and every relevant document in evidence specifically stated that Buchanan was “owner” and the Messrs Nichols and I had manifestly purchased our allotments from that “owner”, Buchanan. I had merely provided the guarantee for “the owner”.
The alternative is that the Magistrate was simply a corrupt Police Magistrate.
Wilson knew I was not “the owner” but he had $3,708 on his books which he had to clear. All he needed was a solicitor and barrister prepared to compromise themselves and the Courts for a little moolah.
The facts and the law were so clear and unequivocal that I was granted Legal Aid to defend that proceeding.
In addition to the evidence as to owner at that hearing Graeme Wilson, on oath, and with reference to Council documents gave the following evidence, it is this evidence which becomes critical in the Supreme Court some 20 years later.
On 12th February 1980 Buchanan filed several plans of subdivision with the Council
On 20th February 1980 the Council considered an 18 Lot residential Plan of Subdivision and resolved to serve a Notice of Requirement requiring construction of the roads shown on that pan and that the subdivider provide evidence that a Water Supply Agreement had been entered into
On or about 20th February 1980 The Council served that Notice of Requirement dated 20th February 1980
That the 18 lot plan filed on 12th February 1980 was then processed in 7 parts.
A document obtained by me during the County Court proceeding described below was a carbon copy of a Letter dated 24/8/87 from the Council to Debt Collectors Laurens and Co, this letter set out that I had purchased only some of the allotments and that the other lots had been sold by Buchanan before I purchased mine, the letter then sets out that road works costs are recoverable from the “owner” and then the Council requests Laurens and Co to advise on the Council’s legal position having regard to that information. One must conclude that unless Laurens and Co were plain stupid they would have advised that I was not “the owner” from whom the costs were recoverable.
The Council plainly proceeded in the belief that its perjury and a corrupt lying lawyer could dupe the Magistrate.