In 1983 a timeshare company, Woodleigh Heights Resort Developments Pty Ltd (WHRD), entered into contracts of sale to purchase 10 blocks of land which I owned within the cluster subdivision knows as Woodleigh Heights at Kyneton. In 1984 WHRD defaulted on those contracts and when I told them that it was not a problem because I would simply rescind the contracts and sell elsewhere, the company advised that it had a private water supply agreement with the Water Authority and if I attempted to sell my land to anyone other than WHRD, water would be denied to my land and it would be rendered useless and worthless.
On enquiry, the joint secretary of the Kyneton Council and Kyneton Water Authority, Mr Stan Porter, confirmed the fact of the private water supply agreement and advised that water would not be made available to my land except with the consent of WHRD and that building permits for my land would not be issued unless it had that water supply.
Surely, this could not be true or lawful! I had purchased the land in 1979 and at that time building permits were available to the properties and WHRD did not even exist. The water supply and reticulation system within the cluster subdivision was common property and it was hard to believe that it could lawfully be under the control of WHRD or subject to an agreement between the Water Authority and WHRD. One does not need to be a lawyer to know full well that in this democratic country of Australia there is no possible lawful means whereby any individual could gain control of an essential service within a cluster subdivision or strata title development or anyone else’s property at all and then, at will, deny that essential service to other property holders so as to render their properties unusable and valueless to everyone except the person with the agreement. Such a notion is an affront to all sense of morality let alone the law.
When faced with this outrageous and apparently fraudulent threat from WHRD, together with the apparent preparedness of the Water Authority and the Council to give effect to that threat, my legal advice was that the easiest option was to sue WHRD for specific performance of the contracts.
In 1984 I issued a Supreme Court Writ seeking orders for specific performance of the contracts. At that time Australian Guarantee Corporation (“AGC”) were my first mortgagee, I fell into default with AGC and quite frankly, AGC simply did not believe this water business, AGC wished to hold a mortgagee auction, in the circumstances I could obtain an injunction to prevent that course but following conversations with Mr Des Roberts of AGC, I agreed to allow the auction to proceed on condition that it was sold at proper market value reflecting entitlement to water supply and building permits.
Mr Roberts arranged for LJ Hooker to auction the land and for sale signs were duly erected, thus ringing in round two. Firstly, Brian Murphy the Managing Director of WHRD wrote to AGC on Body Corporate Letterhead and advised that the “For Sale” signs were not permitted by the Body Corporate Rules. AGC refused to remove them, so the signs were stolen. Directly after I made a complaint about the theft to the police, the Water Authority made an unsolicited approach to LJ Hooker and advised that water was not available to my land. AGC cancelled the proposed mortgagee’s auction because without water it was unlikely that a bid would be received at all, let alone a sale for a fair price. (see further Police Report)
Immediately after the mortgagee’s auction was cancelled, the Managing Director of WHRD, Mr Brian Noel Murphy, offered to purchase the land direct from AGC at about half the price of what it had contracted with me to purchase it for. AGC refused the offer. (see transcrript – Des Roberts evidence to the Supreme Court)
(See Chapter 8 part 5 for complete discussion on the conduct of the Council and Water Authority in respect of AGC and the fraudulent and unlawful Water Supply Agreement.)
My specific performance matter came on for hearing in 1985 before Justice Marks and as soon as Mr Des Roberts had given evidence as to the above things, WHRD sought to settle the matter. Settlement agreement was reached and Justice Marks made orders to the effect of the Terms of Settlement where WHRD were ordered to complete the purchase of some of the allotments and to agree to a water supply to the remaining allotments. WHRD were also ordered to apply to the Water Authority to transfer the Water Supply Agreement to the Body Corporate.
Shortly after the hearing I engaged LJ Hooker to sell the land by auction and for-sale signs were erected. Ring in round three and a major case of déjà vu when all the signs started to get stolen My wife and I were re-erecting them when the directors of WHRD turned up and instructed the manager of the resort to get the fire truck and run the signs down. My then wife stood between the sign and the truck but the manager drove straight at her. Although terrified, she stood her ground and the truck stopped within inches of her. At that point I called the police who attended. The brave directors fled the scene before the police arrived, leaving instructions that the fire truck be parked in such a manner as to conceal the sign before the courageous resort manager also fled.
A few days later I received a letter dated 5th November 1985 from Kyneton Council demanding that I remove my “for sale” signs because they did not have a planning permit and if I did not remove them the council would remove them at my cost. I examined the council permit register and it was clear that never in the history of Kyneton had a planning permit for a “for sale” sign ever been either sought or granted or refused. I am probably the only person in the history of Australia to be required to have a planning permit for a “For Sale” sign. Additionally, a short distance from my sign, on the same road verge, WHRD had a very large hoarding sign some 10 metres wide and about 4 metres high advertising the resort and they had direction signs chained to a street name post on the corner of Edgecombe Rd, none of which had planning permits.
I referred the matter to Mr Max McDonald, the Member of Parliament for Whittlesea. On 11th November 1985, Mr McDonald attended at the offices of the Council and forcefully suggested to the Shire Engineer that the signs should be allowed to stay in place.
The following day, 12th November 1985, the Water Authority sent an unsolicited letter to LJ Hooker advising that my land did not have a water supply. Again, there was no option other than to cancel the auction.
Immediately following the cancellation of the auction, WHRD wrote to LJ Hooker and offered to purchase the land at about half its true value and emphasised that they did not require services or building permits. I refused to sell. This was the exact set of circumstances as when AGC attempted to sell. First removal of “for sale” signs then after an official intervention to keep them in place the Water Authority made an unsolicited approach to LJ Hooker advising water was not available, followed by WHRD seeking to purchase the land at less than half the true value.
Mr McDonald then raised the matter in Parliament which resulted in a four year useless enquiry during which the Department of Local Government said that a layperson could not be expected to know that water supply was the responsibility of the Water Authority and nothing to do with the Council or Department of Local Government. The Minister for Water relied upon misleading advice from the Water Authority’s solicitor Mr Ian Lonie of Maddock Lonie and Chisholm (now Maddocks). That part of the story will be told later.
(The rest of this page is a precis of chapter 6 but is inluded here for continuity)
By 1987 I had paid out AGC and Mercantile Credits Limited (“MCL”) had become first mortgagee. I was in default with MCL and MCL had engaged the solicitors Gair and Brahe to act in relation to my default and solicitor Mr John Norman Price had conduct of the matter. MCL and its solicitors were completely aware of all of the above matters and things and particularly aware of the fraudulent Water Supply Agreement and the use to which it had been put and for the purpose of giving evidence MCL and its solicitors were present at the 1984 Supreme Court hearing where I sued WHRD for specific performance of the contracts on which WHRD had defaulted.
Late in 1987 I became aware that on 21st October 1987 WHRD had been refused a planning permit to use some of their allotments for ordinary residential use and consequently were intending to appeal. I saw this as an opportunity to force the issue and decided to make a submission to the Administrative Appeals Tribunal as to the unlawful nature of the water supply agreement and the apparently fraudulent use to which it had been put and in knowledge of which the Tribunal could not uphold the appeal and order the issue of Planning Permits where unsuspecting purchasers could not be assured of a lawful water supply or a water supply at all.
I fully informed Price of my intention. Shortly afterwards Price obtained a Supreme Court Order giving possession of my land to MCL. It was at this time I learned that Price was also solicitor for WHRD and was acting for WHRD in respect to the Administrative Appeal. An obvious conflict of interest which he probably concealed from MCL but certainly concealed from me when I was providing him information on the conduct of his other client, WHRD. I suspected an ulterior motive when Price took control of my land, purportedly for the benefit of MCL.
Price was thoroughly aware that the sole reason why I could not pay his client MCL was that my land had had been rendered useless and valueless by the overtly wrong, unconscionable, fraudulent and illegal conduct of his other client WHRD and the fraudulent implementation of the overtly illegal Water Supply Agreement
By letter dated 26th February 1988, I advised Price, WHRD, the Council and the Administrative Appeals Tribunal of my intention to appear and make a submission. In that letter I set out complete details as to the unlawful nature of the Water Supply Agreement and the fraudulent use to which it had been put, full details of which were already very well known to Price but most importantly it pointed out the self evident fact;
“Woodleigh Heights Resort Developments P/L cannot demonstrate to the tribunal that it can or will facilitate proper access to the Common Property and is unable to demonstrate that the land does have lawful access to water or other services and Woodleigh Heights cannot demonstrate to the tribunal that it will not use its control over the common property and water supply to obtain advantage for itself.”
At the appeal hearing, the barrister, Lieutenant Colonel Greg Garde, appeared for WHRD and was instructed by Price who was also present. It is not credible that Garde was not fully briefed on my intentions and on the content of my letter of 26th February.
The tribunal hearing was set down for 7th March 1988, in his written submission dated 7th March 1988, Garde represented that I was a “former owner” of no standing and he further represented as a fact, rather than opinion, in bold capital letters, in his signed, written submission, “THE APPLICANT HAS THE BENEFIT OF ENFORECEABLE LEGAL AGREEMENTS WITH THE WATERWORKS TRUST FOR THE PROVISION OF WATER, AND THE SEWERAGE AUTHORITY FOR THE PROVISIONS OF SEWERAGE” and for no good or relevant reason, other than to denigrate me personally and my submission, Garde’s written submission said “In 1984, Supreme Court proceedings erupted between the three developers (vis Glenn and Cheryl Thompson, the appellant and Woodleigh Heights Marketing Pty. Ltd, the last of these companies is under the control of a mortgagee)”. (Woodleigh Heights Marketing was the company which held my land in trust for my wife and me, details later.)
Also at the hearing, representing the Council and Water Authority, was Mr Ian Lonie, who, as intimated above and detailed below, had misadvised the Minister for Water. Lonie told the Tribunal that “Mr. Thompson has been everywhere with his allegations” and implied that my assertions were false or of no substance.
On the face of it, assuming that Price competently briefed Garde you would have to think that Garde must have known full well that the water supply agreement was unlawful in every respect and had been used for fraudulent purpose, namely to prevent the sale of my land to anyone other than WHRD and that is why the Supreme Court proceedings occurred, they did not erupt as asserted by Garde. In any case, his instructing solicitor, John Norman Price, was demonstrably fully aware. There was absolutely no benefit or reason for MCL to take possession of my land, it was vacant land, there were no rents to receive and there was no need to take possession to exercise a mortgagees power of sale. The only benefit accrued to Price’s other client, WHRD, because the consequence of MCL taking possession was that I had no standing at the Tribunal hearing. There was of course benefit to Price’s pocket at the expense of mine and MCL’s. On the face of it Garde’s submission was in direct reply and purposeful contradiction of what he surely knew my proposed submission to be. Assuming Garde had been retained to advise and appear in late 1987 the probability is that Garde was privy to or party to or even instigator of Price taking possession of my land for no good reason other than to disarm me at the upcoming tribunal hearing.
Not surprisingly, given the level of orchestrated corroboration and collaboration, the Tribunal disregarded the truth told to it by me and ordered the Council to issue the permits with water supply and sewerage as a condition but the reality was that due to the deception of Price, Garde, Lonie, WHRD, the Council and the Water Authority there remained no lawful means of providing those services. (Full details of this hearing and the conduct of Price and Major General Greg Garde QC, now Justice Greg Garde. are now set out at Chapter 6).
By this time each of my original 10 allotments had been subdivided into three smaller allotments. About two years later MCL had been acquired by ESANDA and on 19th February 1990, Price sold all my land to Deckwood Pty Ltd for $7,500 per block. Deckwood Pty Ltd was a company controlled by the children of the CEO of the timeshare company operating the Woodleigh Heights Resort, Mr Kenneth Raymond Buchanan. . Price, ESANDA’s and WHRD’s solicitor, did not advertise the land for sale. He did not have an auction and he made no attempt whatsoever to maximise the sale price.
Price merely sold it by private treaty to associates of his client WHRD. The $7,500 per block was about one quarter the value of the land compared to if it had a water supply available to it. Immediately the land became owned by Deckwood, water was made available to it and about six weeks after that, Deckwood was making a tidy profit by selling the allotments to a related company, Petite Pty Ltd, for $12,500 per block. On the same day that Petite Pty Ltd purchased the allotments, it applied to the Registrar of Titles to have each allotment divided into 102 share interests for timeshares. Petite Pty Ltd then leased each allotment on a 99 year lease to Club Kirribilli Limited, in whose hands each such share interest was worth several thousand dollars each as timeshares at what is now, Kyneton Bushland Resort. Each of Deckwood Pty Ltd, Petite Pty ltd and Club Kirribilli were Buchanan companies, as was WHRD when the Water Supply Agreement was entered into.
The Water Supply Agreement was drawn up by solicitors; Palmer Stevens & Rennick (“PS&R”), who were solicitors for WHRD and through their finance arm, PS&R Nominees were financiers to WHRD. PS&R were involved in illegal practices including selling land twice and selling land in breach of the Victorian Sale of Land Act, details of which are set out at Chapter 8 part 3. For a number of reasons, also detailed at Chapter 8 – part 3, PS&R and PS&R Nominees were at risk if WHRD did not acquire my land by fair means or foul. The unlawful water supply agreement and the now demonstrated preparedness of the Council and the Water Authority to give effect to the unlawful and outrageous threat of WHRD was PS&R’s assurance and insurance. The Water Supply Agreement was the loaded weapon, ready to use if and when necessary, and WHRD, the Council and Water Authority were versed in their cooperative but fraudulent use of it and they did all cooperatively and fraudulently use it when necessary for their respective purposes.
On the sale of my land to Deckwood this aspect of the broader fraud by the Kyneton Council, the Water Authority, WHRD, Buchanan and PS&R was complete. The timeshare company had acquired my land at low price by the cooperative fraud of itself and the Council and the Water Authority and others and with the assistance of the corrupt conduct of Price and Garde.