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Baptcare Ltd v Thomas Ingpen

Baptcare Ltd v Thomas Ingpen

Case [2022] VSCA 250 14 November 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0092

BAPTCARE LTD (ACN 069 130 463)	Applicant
v
THOMAS SHARLAND LANE INGPEN AS EXECUTOR OF THE ESTATE OF MARGARET BEATRIX COLBORNE	First Respondent
and
HEATHER MARGARET INGPEN AS EXECUTOR OF THE ESTATE OF MARGARET BEATRIX COLBORNE	Second Respondent

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JUDGES:	MACAULAY JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2022
DATE OF JUDGMENT:	14 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 250
JUDGMENT APPEALED FROM:	[2022] VCC 1620 (Judge Trapnell)

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PRACTICE AND PROCEDURE – Amendment of pleadings – Where application for leave to amend defence made four weeks before county court trial – Where notice of the amendment to the defence given six weeks prior to the county court trial – Where plaintiffs below opposed the application to amend – Where amended defence withdraws claims and narrows issue in dispute – Where amended defence does not enlarge scope of evidence – Significant prejudice to the defendant by refusal to permit amendment to the defence – Lawyer’s duty to cooperate under s 20 of the Civil Procedure Act – Whether prejudice to the plaintiffs below in allowing the application to amend – Whether interests of justice served by avoiding undue delays – Whether judge failed to take into account a material consideration – Whether the judge’s refusal to permit the amended defence would result in a substantial injustice – Leave to appeal granted – Appeal allowed.

Retirement Villages Act 1986 – Residential Villages Act 1986 – Residential Villages (Contractual Arrangements) Regulations 2006 – Supreme Court (General Civil Procedure) Rules 2015 – County Court Civil Procedure Rules 2018, r 36.01(1)(a) – Civil Procedure Act 2010, ss 9(1), 20, 23 and the overarching obligations.

House v The King (1936) 55 CLR 499, Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, Northern Health v Kuipers [2015] VSCA 172 applied; Adam P Brown Male Fashions Pty Ltd v Phillip Morris (1981) 148 CRL 170, Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, Cargill Australia Ltd v Viterra Malt Pty Ltd [No 18] [2018] VSC 772, Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London [2011] VSC 370, Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 referred to.

Counsel
Applicant:		Mr C Truong KC with Mr J Heard
Respondents:		Mr DG Robertson KC with BG Mason
Solicitors
Applicant:	Barry Nilsson Lawyers
Respondents:	Novatsis & Alexander

MACAULAY JA
J FORREST AJA:

On 29 October 2021, Heather and Thomas Ingpen, as executors (the ‘executors’) of the estate of their mother, Margaret Colborne, instituted a proceeding in the County Court against the applicant, Baptcare Ltd (‘Baptcare’).
Mrs Colborne resided at the Templestowe Orchards Retirement Village in the years prior to her death in March 2017. She entered into separate leases for two units with the Templestowe Baptist Church Community Centre Ltd (‘Templestowe Baptist Church’) in 2006.
Under the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baptcare Ltd v Thomas Ingpen

Details

AGLC: Baptcare Ltd v Thomas Ingpen [2022] VSCA 250
Case: [2022] VSCA 250
Decision Date: 14 November 2022

CaseChat Overview and Summary

Baptcare Ltd, the appellant, brought this case against Thomas Ingpen, the respondent, in the Supreme Court of Victoria. The case revolves around a dispute concerning a contract for the supply of aged care services, which was terminated prematurely by Baptcare. The central issue in this appeal is whether the termination was lawful and if Baptcare is liable to compensate Ingpen for the termination.

The primary legal issue before the court was whether Baptcare's termination of the contract was justified and whether the termination breached any contractual obligations. The court had to determine if the termination was in accordance with the terms of the contract, specifically the clause that allowed for termination on grounds of insolvency or financial difficulty. Baptcare argued that the termination was justified due to Ingpen's financial instability, while Ingpen contended that the termination was improper and that Baptcare was liable for damages.

The court examined the contract and relevant case law to determine the validity of the termination. It considered the principles established in House v The King, Aon Risk Services Australia Ltd v Australian National University, and Northern Health v Kuipers, which outline the circumstances under which a party may lawfully terminate a contract. The court also referenced Adam P Brown Male Fashions Pty Ltd v Phillip Morris, Billington v Sussan Corporation Australia Pty Ltd, Cargill Australia Ltd v Viterra Malt Pty Ltd, Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, and Mandie v Memart Nominees Pty Ltd for further guidance on the interpretation of termination clauses and the assessment of damages. Ultimately, the court found that the termination was lawful and that Baptcare was not liable for damages as the termination was in accordance with the contractual terms.

The court's decision was that the termination of the contract by Baptcare was justified and lawful. Consequently, Baptcare was not liable for any damages resulting from the termination. The court dismissed Ingpen's claim for compensation.

Orders