Tylden Rd.
In the face of the facts, the law, my Affidavit, the Statement of Claim, the Book of Pleadings, the Statements of Claim in the 1988 proceeding and my express written instructions to him Middleton made the following submissions. (I have interspersed my comments)
- At page 35 of the Transcript of 15th November the following exchange between Middleton and Master Efthim occurred;
MIDDLETON “Now, the villain in this litigation – sorry, one of the villains in this litigation is a fellow called Mr Buchanan and Mr Buchanan obviously sought to avoid the operation of s.9 and one way or the other the two defendants in this proceeding were involved in that avoidance. I will explain to you how it happened when I come to some simple facts. You had to comply with s.9, simple way of doing it, lawyer telling you how to avoid it.”
MASTER: “Two allotments.”
MIDDLETON: “And do lots of them.”
MASTER: “As was mentioned yesterday, nine twos are 18, from memory.” (As discussed below, on the previous day the Council’s lawyer, Delany QC had told the Master garbage about avoiding section 9)
As detailed above section 9 was not and could not be avoided and that fact was explicitly set out in the Book of Pleadings and would be known to any competent lawyer and any competent and diligent Master.
That would be on p.350, “The plan submitted to the council shall show … (reads) … the several corners” et cetera. Those things are required and shall show and they were not. …. … … We go to sub-s.7 and you’ll see quite clearly stated, “The council shall refuse to … (reads) … are complied with”. We say that in May 1980, this is pleaded, the council contravened that provision and s.569A(1)(b) and (c) by sealing seven two lot plan of submissions which weren’t in compliance with that. You won’t find that anywhere in the earlier proceedings. (transcript page 37)
Here Middleton took the Master to page 350 of the Local Government Act where he read 569A(1)(a), (b) and (c) which require all allotments and roads to be shown. He then took the Master to 569B(7) and read 569B(7)(a)(i) and (ii) Which requires the Council to refuse to seal the plans unless it is satisfied that the roads can be drained and that all the provisions of the Health Act and the Building Control Act and the Local Government Act are complied with and then he said; “The Council contravened that provision and s.569A(a)(b) and (c) by sealing seven two lot plan of subdivisions which weren’t in compliance with that.” And then he said; “You won’t find that anywhere in the earlier proceedings.”
These things said by Middleton were mindlessly, grossly, grievously negligent. Here he overtly and unequivocally said;
The plans do not comply with 569A(1),(b) and (c) which require all allotments and roads to be shown.
s.569B(7)(ii) requires the Council to refuse to seal the plans if there is not compliance with the Local Government Act
The Council contravened s.569B(7) and 569A(1)(b) and (c) by sealing seven two lot plans which were not in compliance with that.
The Master would not find that anywhere in the earlier proceedings
These things were mindlessly, grossly, grievously negligent because;
As detailed above that the plans did not show all of the roads and allotments was a function of Buchanan’s intentions, not a quality or property of the plans per sé which did in fact show all of the roads and all of the allotments intended to be laid out on in respect to each discrete subdivision that each discrete plan related to.
To the extent that the plans may have been unlawful that was repaired by s.569B(10) upon sealing
To the extent that the plans may have been unlawful the allotments created were identical in all respect to the allotments which would have been created by lawful plans
The plans did not and could not conceivable cause any loss and damage and could not conceivable form any part of any conceivable “cause of action” and did not and could not and were not said or alleged to form any part of the “cause of action” defined in the Amended Statement of Claim or in my Affidavit or any other document.
That the plans did not comply with s.569A(1)(a) and (b) was squarely and unequivocally pleaded at paragraph 20 of the 1991 Amended Statement of Claim in the 1988 proceeding and was squarely and unequivocally set out at page 8 of the 1991 Book of Pleadings.
My written advice of 11th November to Middleton said;
“It is clear (and the LGA intends at s569(10)) that the unlawful sealing of a plan is, of itself, of no consequence because once sealed s569(10) operates (and rightfully so) to make the sealing lawful, and once approved by the Registrar of Titles any allotments created in the absence of any further deficiency, are indistinguishable from all other allotments.” (LGA = Local Government Act)
“I knew about Buchanan’s avoidance of S9 of the Sale of Land Act as early as about 1985 but could not and still cannot show that the Council had any knowledge of the effect of the series of plans and in any event the fact is that even if the Council did know it was not the sealing of the plans which caused my loss and damage.” (it was actually 1983 but hastily writing the email I didn’t check – all that was relevant was that it many years ago).
- “By the time of my writing the notes in the book of pleadings I also knew that each of the plans was in breach of s569A(1)(a) because the plans did not show all allotments , roads etc however this knowledge was of no consequence and the sealing of these plans did not cause me the loss and damage and in any event 569(10) validated the sealing.”
Middleton did not take the Master to 569B(7)(a)(iii) and did not explain or set out anything of the true “cause of action” or the things giving rise to it or the concealment of those things and even if he had done so he had so polluted the facts with his mindless gibberish it would have been of no effect.
It is hard to imagine such grossly, grievously negligent and inane submissions which are not only inane but they fly in the face of the law, the facts, my written instructions and common sense and it can only be that he made those submissions knowing full well that they were false or alternatively simply not caring whether they were true or false. Whatever the true answer is this is straight out unadulterated corrupt conduct not capable of being mitigated.
Middleton then went on;
Yes. To put the bottom line on this, Master, this is the first time that it’s been alleged that the initial sealing of the plan of subdivision was unlawful or illegal and that’s despite the fact that we’ve had lots of the proceedings and when I take you to Justice Kaye’s decision, not for very long, it’s apparent that everybody before Justice Kaye proceeded on the assumption that a subdivision was lawful. Everybody in the Magistrates’ Court proceeded on the assumption that the subdivision was lawful. Same in the County Court. (Transcript page 38)
See above; mindlessly inane and corrupt.
The subdivisions were not unlawful and Justice Kaye had no interest in the plans or subdivisions.
The sealing per sé was not unlawful. The unlawful act was the breach of 569B(7)(a)(iii)
“What we are doing is going back a step which was never thought of, never even contemplated that the subdivision itself would be unlawful.” (transcript page 38)
See above; mindlessly inane and corrupt.
….. none of the subdivisions we’re referring to now had planning permits and none had valid notices requirement issued to it pursuant to E of the Act. I’ll explain it to you in this sense, that there are clearly no planning permits. Secondly, but the resolution that was made originally as to the requirements was one made in February, 20th. It wasn’t proceeded with. What was proceeded with to get around s.9 of the Sale of Land Act, we would say at the instigation of the villain Mr Buchanan, were a series of two lot subdivision but no requirements were made by any authorisation of the council whatsoever. You can’t rely on the earlier one because that’s in relation to a different animal, so there’s no authorisation at all in relation to the subsequent subdivisions. . (Transcript page 38)
Mindless – s.9 of the Sale of Land Act cannot be avoided with two lot plans or at all and I had advised him of that fact and it was graphically and unequivocally set out in the Book of Pleadings.
The entire reason why the contrived plans did not have a valid Notice of Requirement or a planning permit associated was because they were not processed as parts or sections or stages of the 18 lot plan and not because the 18 lot plan was a “different animal”. If as the Council asserted these separate plans were processed as parts or sections of the 18 lot plan then the contrived plans were the arms and legs of that “animal” and did have valid requirements and valid planning permits.
Middleton completely and utterly failed to make the correct submissions and instead made grievously damaging mindless and in the circumstances corrupt submissions which he at best carelessly invented.
Down the bottom there’s an important inscription which says “Note – Plan submitted in 5 sections 30th Schedules all identical to this” …. … .. The significance of that to the reader, we would say, certainly as Mr Thompson proposes, is that it looks as though when you look over the page to the diagram, that’s all done in one lot, in one basic subdivision because they’re all schedules identical to this. You just see that document. That’s what Mr Thompson thought was happening. Go to 9 and we’ll see what did happen, not to Mr Thompson’s knowledge, however. It took a little while for this to sort of sink in. (Transcript page 44)
At this part Middleton was referring the Master to the handwritten note in item 1 of the Council’s Supplementary Affidavit of Documents in the 1988 proceeding which I have referred to above and then he asserts that this note caused me to believe or continue to believe that 18 lot plan had been processed in several sections whereas the fact was that I always believed that they had been processed as separate and discrete subdivisions for the purpose of avoiding a grossly mistaken view of s.9 but because they did not facilitate that avoidance I could not demonstrate that the Council’s mind was anything other than as asserted by it, that the contrived plans were processed as parts or stages of the 18 lot plan in which case they inherited legitimacy from the permit and resolutions related to the 18 lot plan.
Middleton’s reference to 9 was a reference to my exhibit 9 being the series of contrived plans. Middleton knew full well that I was aware of them and their purpose since my 1980’s solicitor Danny Ginsburgh told me and my affidavit in the proceeding said exactly that as did my email of 11th November to him and I was well aware that each plan was for a separate subdivision because that was the entire purpose of them, separate 2 lot plans and separate 2 lot subdivisions for the specific purpose of avoiding a moronically mindless understanding of s9.
The question was what was in the Council’s mind at the time of sealing; not what was in my mind. Did the Council keep the 18 lot plan on foot and process the series of plans in relation to that or did the Council abandon the 18 lot plan and knowingly or carelessly process the series of plans as discrete subdivisions without services and without lawful means to provide those services.
This was an overt misrepresentation of me born of gross neglect (or worse) which I will discuss below.
“What Mr Thompson thought we say perfectly legitimately, is there was document which he saw at 14 and always thought that was the plans submitted in the sections, not separate subdivisions.” (Transcript page 45)
This part followed the previous quote and Middleton’s reference to 14 is a further reference to the Notice of Intention referred to above and which was discovered in the County Court proceeding and which had the handwritten note on it; “Note Plan submitted in 5 sections 30th Schedules all identical to this” and the question was what was in the Council’s mind, not what was in my mind. It did not matter what I thought.
- Then to top this garbage off, at page 55 the following exchange took place between the Master and Middleton;
MASTER: “Then an event happens in 2000, and then he looks at it, then he works all this out.”
MR MIDDLETON: “That’s it. When we say works it all out, works out that the original subdivision was unlawful. It’s important for us to identify and we say once you do identify it we succeed, identify what it is that is the cause of action being brought here and what it is that he discovers. What it is is that the original subdivision was always flawed. The foundation, if you like, was always dodgy. The foundation didn’t exist for everything else that was litigated. It simply wasn’t there. It was all based upon the premise that the subdivision was lawful.” (My emphasis)
I did not work out that the original subdivision was unlawful. It was not unlawful. My Affidavit, my written instructions to him, the Amended Statement of Claim all asserted that the “cause of action” was that the Council;
Sealed the plans of subdivision in direct contravention of its statutory duty to refuse to seal them (See section 569B(7) of the Local Government Act 1958) and/or sealed the plans for an ulterior purpose, namely to avoid the provisions of s9 of the Sale of Land Act. (my emphasis)
This has zero, zip, zilch to do with Middleton’s mindless assertion that “the original subdivision was unlawful”
It is difficult to imagine more grievous gross negligence. Middleton invented these things.
“… ….. it actually shows, in our submission, that Mr Thompson was still under the wrong impression that there was still this one plan of subdivision. They weren’t done in different parts… … ….. in this document, which are notations made by Mr Thompson, you readily see that he is still under the impression that the subdivision was to proceed as one in accordance with the resolution of 20 February. That’s the submission I make. ”. (Transcript page 57)
Here Middleton took the Master to the Book of Pleadings and asserted that it demonstrated the above nonsense. There is nothing, zero, zip, zilch to demonstrate those absurd assertions in the Book of Pleadings or anywhere at all.
Page 5 of the Book of Pleadings explicitly sets out that I knew the contrived plans represented different subdivisions and my email of 11th November told him that I knew that they had been fabricated since the early 1980’s
Page 8 of the Book of Pleadings specifically asserted breach s.569A(1)(a) because the discrete plans did not show all of the allotments
This submissions by Middleton was in the face of everything (more on this quotation below).
“We did not know that the subdivision was originally flawed and unlawful and we found that out in August 2000.” (Transcript page 71)
This was simply another fabrication by Middleton; the subdivision(s) were not flawed and were not illegal in any respect and even if they were they would not and could not cause loss and damage and could not conceivable form a basis for any “cause of action” at all.
I repeat the content of my email of 11th November 2005 to Middleton.
Middleton went on to make a number of further mindless and in the face of the facts and law submissions.
On the face of it Middleton’s submissions were grossly misleading concoctions of his own mind apparently fabricated by him to address his grossly obviously negligent misunderstanding or non-caring understanding of the cause of action and the most simple legislation and even worse; his fabrications were manifestly in the face of the abundant material before him and my specific written and oral instructions. He must have known that on his (grievously negligent) understanding and submissions I had no hope of success and he should have told me rather than racking up an $86,000 bill to line his pockets with moolah and he should have told me to prevent me being exposed to several hundred thousand dollars of cost to be awarded against me.
I read the transcripts of this proceeding during the 2005 Christmas break and was shocked and horrified. By email and attached letter dated 14th February 2006 I wrote to Middleton; I cut and pasted his submissions from the transcripts to the letter and amongst other things I said;
“Your submissions fly in the face of:- 1) the statement of claim; 2)the material in my affidavits; 3) my written and oral advice to you; 4) the facts; 5) the law; 6) the previous pleadings; 7) simple logic …. … to the extent that I can make sense of the alphabet soup which is your submission you say … .. …… You did not make a single relevant, accurate or necessary submission. You absolutely misinformed the Court, either specifically or by omission, in all respects.”
“On your submissions and entirely as a consequence of your submissions we are almost certain to lose and in the unlikely event that judgement is for us we shall almost certainly face an appeal. If we lose I shall appeal and I shall require you to co-operate to explain to the Court the wrongness of your submissions”
Middleton replied by letter dated 17th February 2006 and said; “I acknowledge receipt of your facsimile and email .. .. … I deny the allegations you make against me …. ….. It is obviously not appropriate that I act for you further in this matter. … … ‘Private and Confidential’ correspondence should be sent to my postal address or by email”
Middleton would almost certainly sue a mechanic who failed to do up a wheel nut, but then a mechanic, upon having the loose wheel pointed out, would most likely admit his error and do whatever was necessary to remedy the damage caused. Not so Middleton, he denied the overwhelming incontrovertible detail and facts set out in my letter, his denial flew in the face of his own words, copied and pasted, in my letter before him and he determined to leave me hanging out to dry but he was careful to protect himself from having his secretary know these things. So much for ………… (add your own ethical/moral/humanitarian notions)
Five months later the Master handed down his decision and it was exactly as forecast and anticipated by me.
I have pondered and pondered Middleton’s submissions trying to find a mitigating state of mind which he may have had when making these submissions but I cannot find one.
He must have known full well that his submissions were hopeless and could not succeed. They were in the face of plain common sense as well as the documents and facts he purported to rely upon; for example at page 57 of the transcript Middleton took the Master to the Book of Pleadings and the following exchange took place;
MR MIDDLETON: ….. … it actually shows, in our submission, that Mr Thompson was still under the wrong impression that there was still this one plan of subdivision. They weren’t done in different parts. I want to take you to a few pages.
MASTER: That’s okay. You’re saying this actually answers you because if I look at what he says he found out in 2000 there won’t be any of it in here.
MR MIDDLETON: No, I can’t go that far. What I say is that if you look at some of the notations in this document, which are notations made by Mr Thompson, you readily see that he is still under the impression that the subdivision was to proceed as one in accordance with the resolution of 20 February. That’s the submission I make.
The truth known to Middleton was that at page 5 of the Book of Pleadings I had made the following notes:-
“Notwithstanding that it was illegal Buchanan had sold two of the allotments. (Notices of Disposition opposite)”
“In order to avoid the provisions of section 9 of the Sale of Land Act which at that time prevented the sale of allotments on subdivisions of more than two allotments (etc) Buchanan then lodged seven separate plans which were contrived to create several subdivisions of two lots each” (my emphasis)
Below these comments I had physically pasted copies of two of the contrived plans given in evidence by the Council in the Magistrates Court.
This is not reconcilable with Middleton’s mind snapping assertion which he made in the face of the facts known to him and I say that his own words give him away. At the risk of being repetitious I make the following points;
In these last mentioned quotes from Middleton’s submission he was referring to the content of the Book of Pleadings and he said of my belief immediately prior to August 2000 when I discovered the true “cause of action”;
“Mr Thompson was still under the wrong impression that there was still this one plan of subdivision. They weren’t done in different parts.”
In the face of Middleton’s mindless assertion the Book of Pleadings clearly and precisely sets out my belief in 1991 when in my own handwriting I said;
Buchanan then lodged seven separate plans which were contrived to create several subdivisions of two lots each
And my 11th November email to him said;
“I knew about Buchanan’s avoidance of S9 of the Sale of Land Act as early as about 1985”
The question was whether or not these “several subdivisions of two lots each” were the 18 lot plan done in several parts or effective stages as asserted by the Council or were they disparate and discrete subdivisions totally unrelated to the 18 lot plan and associated resolution of 20th February 1980.
Middleton’s submissions were completely and utterly in the face of the facts which were in his face and manifestly known to him and his submissions were also in the face of the law
These foregoing mindlessly inane (or worse) submissions of Middleton reflect what he set out at page 10 of his written Outline of submissions where he said to the effect:-
The Council has a statutory obligation under 569B(7) to refuse to seal plans unless they comply with the Local Government Act
On 20th February 1980 Buchanan filed the 18 lot plan but that was not proceeded with
Subsequently Buchanan filed the contrived plans. These plans did not comply with s.569A(1)(a), (b) and (c)
These contrived plans gave rise to an illegal series of two lot subdivisions which were contrived to facilitate breach of s.9 of the Sale of Land Act.
These submissions by Middleton were bald faced, overtly, manifestly, unequivocally in the face of everything.
Little wonder he was concerned by the Book of Pleadings causing me to send my email of 11th November 2005. I conclude that Middleton made his submissions knowing full well that they were false, misleading, deceptive and dishonest and that he made them knowing full well that on his submissions I MUST lose. He continued even in the face of the specifics in my email to him. I find it difficult to imagine a more comprehensively wrong and damning set of circumstances; however incomprehensible as it is the conduct of the lawyers for the Council and Water Authority and then of course Osborn and then the Court of Appeal far exceed the comprehensive wrong of Middleton’s conduct.
I have tried seriously hard to make sense of Middleton’s alphabet soup of submissions but try as I may I cannot find any sense or logic to them and the best I can hypothesise is that in the face of a super abundance of material he asserted that I had discovered my own state of mind in August 2000 whereas the fact was that I had discovered the Council’s state of mind. The certain fact is that his submissions were mindless and in the face of abundant material which he was manifestly and demonstrable aware of and much material including the law which he was or ought to have been aware of. It is not reasonably possible that he held a belief that on his submissions I would succeed.
I conclude corruption. He must have done it for the moolah secure in the comfort of the silence and protection of the Brotherhood and to hell with the truth and my welfare. On his grievously negligent submissions (or seriously worse) I had no hope and he must have known it. He could not; not have known it.
As I said above, Middleton denied that he acted wrongly or negligently and refused to help me correct his grievous damage at the then inevitable appeal.
Woodleigh Heights.
Middleton made even more grievously negligent submissions in respect of the Woodleigh Heights subdivision however repetitious neglect does not add to the seriousness and it becomes boring. In the interest of moving on to yet more corruption I will relegate discussion on his further neglect to the footnote where I completely dissassemble Osborn’s frabrications in respect to Woodleigh Heights.