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City Desk
15 July, 2008  
Don't say cheese

Sunk in a sea of caveats, a bankrupt purchaser and loads of litigation, two Perth musicians have lost their property and their livelihood. Jonathan Gadir investigates

imageThrough no fault of their own a husband and wife from Perth, who over four years ago embarked on what should have been a simple house sale, have ended up victims of a legal horror story that has left them almost destitute.

Ashley and Louise Arbuckle are both musicians. Ashley, 65 (seen here), is a violinist and has been co-leader of both the Royal Philharmonic and London Symphony orchestras.

In order to expand their boutique cheese factory, the Swan Valley Cheese Company, they decided to sell the Nedlands house that Ashley had owned since he was 22-years old.

In late 2003 it was sold for $865,000 to a globe-trotting couple, Dr William and Susan Ardrey.

Dr Ardrey has a career in the biotech industry and Mrs Ardrey had worked in New York for a merchant bank. The sale contract was, not uncommonly, conditional on finance being obtained.

When Mrs Ardrey reported to the Arbuckles’ real estate agent that she couldn’t get the financing by the agreed date, the house was re-advertised and shortly afterwards sold to Roger and Alison Bartlett.

However, the Arbuckles were prevented from completing the sale when they discovered that the Ardreys had lodged a caveat on the property.

Mrs Ardrey said she now had the finance, claimed the contract was still on foot and demanded the property be sold to her.

The Bartletts also lodged a caveat and eventually commenced an action in the WA Supreme Court against the Arbuckles, the Ardreys and the real estate agent, seeking orders to have the property sold to them.

imageThe case revolved around the conflicting accounts of what went on between Mrs Ardrey and the Arbuckles’ estate agent, Greg Rossen (pic).

Mrs Ardrey claimed she was led to believe the house was going to be hers, and that the contract was still on foot – despite going to Rossen and collecting her returned deposit cheque.

In his 2004 judgment, Commissioner Michael Odes QC was “unimpressed” by Susan Ardrey’s evidence.

He said she was “an intelligent person with a strong personality”, but rejected her account of events as improbable.

Her husband’s supporting evidence was found to be “vague and improbable”.

Odes said:

“I found it remarkable that a person with his educational background and business experience frequently needed to ask what apparently were fairly simple questions to be repeated.”

imageThe Arbuckles (seen here in a blurry snap), instructed their lawyers, Talbot Olivier, to commence indemnity proceedings against both the Ardreys and Rossen, seeking to be indemnified against any award of damages.

They argued they had been unable to complete the sale of their house – despite being ready, willing and able – because of the actions of Mrs Ardrey and the negligence and/or TPA breaches of the real estate agent.

When ordering the sale of the house to the Bartletts, Odes also ordered that damages be paid by the Arbuckles, and that the Ardreys (but not Rossen) should reimburse them.

“At the end of the trial, I thought justice had been done,” Ashley Arbuckle told Justinian.

“Although I felt wronged that the commissioner ordered that I pay damages, I naively felt reassured because Mrs Ardrey was ordered to reimburse me – and especially because of her claims on oath that she had access to substantial funds and that she could pay cash for the house.”

But the nightmare was just beginning. The reimbursement of more than $115,000 in damages wasn’t forthcoming because Mrs Ardrey claimed bankruptcy.

Further, her husband and other family members lodged claims against her estate. Dr Ardrey said his wife owed him $400,000 because of debts he paid on her behalf.

The Arbuckles’ current solicitors are not happy with the idea that moneys paid by a husband on behalf of his wife could be a debt recoverable against a bankrupt estate.

They say the effect is that the Arbuckles’ share of the estate is substantially reduced because Dr Ardrey is now the major creditor.

Ashley Arbuckle told us:

“We believe that our lawyers hadn’t looked after us. I had no idea that a person claiming to go bankrupt could ruin our lives.”

According to the Arbuckles’ current solicitors, after 18-months of trying to get the trustee in bankruptcy to have the Ardreys examined about their assets and to find out whether Dr Ardrey and other members of the family have legitimate claims against Mrs Ardrey’s estate, “nothing has happened”.

Having lost their business and living week to week in rented digs, the Arbuckles have commenced proceedings against Talbot Olivier. They claim to have paid the firm over $200,000 in legal fees.

They say Talbot Olivier breached their duties under their solictors agreement.

The Arbuckles also claim the firm failed to advise them that they had a case against real estate agent Greg Rossen for his alleged negligence – i.e. his failure to obtain clear written confirmation of the Ardreys’ contract termination or to send a notice of termination.

Had he done this, they say, the proceedings against them would never have been brought.

Significantly, they also say Talbot Olivier failed to advise that they had a right to serve a notice on Mrs Ardrey under s.138B of the Transfer of Land Act, which would have required her within 21-days to defend the caveat or have it lapse.

In addition, after the Supreme Court decision, they say Talbot Olivier failed to advise them as to an obvious appeal point – i.e. Commissioner Odes’ denial of their claim to indemnification from Rossen.

Even after four years Ashley Arbuckle is still emotional talking about what has happened.

“We did everything right and we ended up losing what little we had. We’ve ended up with nothing. We believe we weren’t protected by the judicial system.”

An application by Talbot Olivier’s insurers to strike out the claim on the basis they were protected by legal practitioners immunity failed in February.

Later this month there will be an attempt at mediation.

Pynt & Partners, acting for Talbot Olivier, told us that the claim is being defended and that “it is not appropriate to comment on the case”.