Bartter Enterprises Pty Limited v Darmad Pty Ltd ATF the Paul Webb Family Trust - [2025] WASC 14

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BARTTER ENTERPRISES PTY LIMITED -v- DARMAD PTY LTD ATF THE PAUL WEBB FAMILY TRUST [2025] WASC 14
CORAM:   HOWARD J
HEARD:   13 JANUARY 2025
DELIVERED          :   13 JANUARY 2025
PUBLISHED           :   20 JANUARY 2025
FILE NO/S:   CIV 1020 of 2025
BETWEEN:   BARTTER ENTERPRISES PTY LIMITED
Plaintiff
AND
DARMAD PTY LTD ATF THE PAUL WEBB FAMILY TRUST (ABN 32 067 665 144)
Defendant

Catchwords:

Application for mandatory interlocutory injunction - anticipated breach of contract - prima facie case for anticipatory breach - whether the balance of convenience favours the grant of injunction - whether damages are an adequate remedy - interlocutory injunction granted

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr C Beetham
Defendant	:	Mr A J Tharby & Mr M C Douglas

Solicitors:

Plaintiff	:	Clayton Utz
Defendant	:	Bennett

Cases referred to in decision:

Sino Iron Ore v Mineralogy Pty Ltd [No. 2] [2017] WASCA 76; (2017) 55 WAR 36

HOWARD J:

(This judgment was delivered extemporaneously on 13 January 2025 and has been edited from the transcript)

Introduction

The plaintiff, by a writ generally indorsed, commenced proceedings against the defendant on 10 January 2025. On the same day, it filed a chamber summons for an interlocutory injunction by which it sought the following orders:
1.Until further order, the defendant, whether by itself, its officers, servants, agents or otherwise, be restrained and an injunction shall be, and hereby is, granted restraining the defendant from refusing to:
a.accept the Chicks in accordance with clause 4.1.1 of the Contract; and
b.raise the Chicks to Maturity in accordance with clause 4.2.1 of the Contract.
2.The time for service of this summons is abridged to authorise service of it at any time before its return.
3.The parties have liberty to apply.
4.The defendant pay the plaintiff's costs forthwith.
The chambers summons incorporated the following definitions for the purpose of the orders sought:
Contract means the written agreement made between the plaintiff and defendant dated 27 April 2022 titled "Barn Broiler Chicken Contract", and varied by deed dated 24 June 2022 between the plaintiff and defendant and by deed dated 14 August 2023 made between the plaintiff and defendant.
Chicks means 225,300 chicks of the genus Gallus which have been notified by the plaintiff for delivery at the Farm and sheds situated at 440 Henderson Road, Hopedale, alternatively known as 440 Henderson Road, Serpentine, during the week ending 18 January 2025; and
Maturity means the stage of development of a fowl of the genus Gallus at which they are suitable for processing, as determined by the plaintiff. (original emphasis)
The application was supported by the affidavit of the chief commercial officer of the plaintiff's parent, Charlie Philip Rapa, made and filed on 10 January 2025 (Mr Rapa's affidavit), and his supplementary affidavit made and filed on 13 January 2025 (Mr Rapa's supplementary affidavit). Mr Rapa was authorised by the plaintiff to make those affidavits.
The contract (Contract) as asserted in the indorsement of claim comprises three documents being:
(1)the Barn Broiler Chicken contract dated 27 April 2022;[1]
(2)the Deed of Amendment (general provisions) dated 24 June 2022;[2] and
(3)the Deed of Amendment (extension of term) dated 14 August 2023.[3]
[1] Mr Rapa's affidavit [17(a)] and attachment 'CPR-2'.
[2] Mr Rapa's affidavit [17(b)(i)] and attachment 'CPR-3'.
[3] Mr Rapa's affidavit [17(b)(ii)] and attachment 'CPR-4'.
As I understand, there is no issue between the parties that those three documents comprise the Contract.
The plaintiff is defined in the Contract as the Processor. The defendant is defined in the Contract as the Grower.
The background to the Contract is stated as follows in the Contract:[4]
A. The Processor is in the business of breeding, hatching and processing of poultry as well as other activities associated with the production of chicken meat.
B. The Processor requires the Grower to raise Chicks in a proper, efficient and competent manner in order to produce quality Broiler Chickens at a competitive cost for its processing plant at Osborne Park, Western Australia.
C. The Grower has the necessary facilities, skills and attributes to raise Chicks as Broiler Chickens.
D. The Processor agrees to supply Chicks and other Goods to the Grower and the Grower agrees to raise the Chicks as Broiler Chickens in accordance with the terms and conditions of this Contract.
[4] Mr Rapa's affidavit [17(a)] and attachment 'CPR-2', page 38.
Clauses 4.1 and 4.2 are central to the claim made by the plaintiff.
Relevantly, they provide as follows:[5]
[5] Mr Rapa's affidavit [17(a)] and attachment 'CPR-2', page 43 and Mr Rapa's affidavit [17(b)(i)] and attachment 'CPR-3', page 75, noting that cl 4.1 was amended by the Deed of Amendment in June 2022.
4.1Delivery of Chicks and Goods
The Grower must:

4.1.2accept all the Chicks and Goods delivered by the Processor;
4.1.3acknowledge delivery of all Chicks and Goods delivered to the Farm by promptly signing the delivery dockets or consignment notes or any other method determined by the Processor; and
4.1.4to notify the Processor within 24 hours of any known or suspected deficiency in the Chicks or Goods so delivered.
4.2Raising the Broiler Chickens
The Grower must:
4.2.2raise the Chicks to Maturity;
4.2.3provide, make available and where necessary install the following facilities and supplies:
i.land with suitable drainage, all weather roads and vehicular access to Sheds as reasonably required by the Processor from time to time;
Sheds and outdoor areas suitable for the raising of Broiler Chickens together with such structures, fixtures, fittings and equipment (including temperature control and ventilation equipment) as reasonably required by the Processor in accordance with the facilities and biosecurity standards of the Processor and as advised in writing to the Grower from time to time (provided the Processor will not require a Grower to make a substantial capital investment to a facility which is other than as outlined in the Facility Standards attached to the Contract unless agreed by the Grower). For the avoidance of any doubt the Grower must make any capital investment required to improve a facility during the Term (if the facility does not already comply) which is:
a.a requirement outlined in the Facility Standards, Biosecurity Manual and/or the Manual as at the Commencement Date,
b.a requirement that is required by law or initiated at any time by the requirement of any Authority (including an industry body such as RSPCA, ACMF or (if relevant) FREPA such as an update or amendment to the RSPCA Standards or FREPA Chicken Meat Standards); or
c.a facility requirement that is otherwise agreed as between the Grower and the Processor;

ii.the necessary quantity of water of suitable quality;
iii.the necessary energy including electric and solar power and gas, or other heating fuel;
iv.new litter and bedding material as required by the Processor; and
v.labour and management necessary for the proper and efficient care of Broiler Chickens in accordance with the Biosecurity Manual, the Manual and generally practised industry standards or more specific requirements of the Processor as notified to the Grower in writing from time to time;
[…]

4.2.4comply with and act in accordance with all relevant laws and ensure that all works, buildings and improvements on the Farm, and the operations of the Farm, comply with the permits and requirements of each Authority, and promptly provide copies of all such permits and requirements to the Processor. (original emphasis)

Clause 16.2 of the Contract presently provides:[6]
16.2Where the Grower intends to cease operations as a grower then the Grower may terminate this Contract by giving not less than 6 months' notice in writing terminating this Contract. The Processor will act reasonably in considering any Grower request to a shorter notice period that 6 months. Where notice is given the Grower further agrees that the Farm will not be used for the raising of Broiler Chickens for a period of not less than 12 months from the effective date of termination.
[6] Mr Rapa's affidavit [17(a)] and attachment 'CPR-2', page 51, as amended by the Deed of Amendment (extension of term), page 76.
The Contract contains the following definitions:[7]
Broiler Chicken means a fowl of the genus Gallus;
Chick means a fowl of the genus Gallus which is not more than 72 hours old; and
Maturity means the stage of development of Broiler Chickens at which they are suitable for processing as determined by the Processor from time to time. (original emphasis)
[7] Mr Rapa's affidavit [17(a)] and attachment 'CPR-2', pages 38 - 40.
Relevantly and not controversially, Mr Rapa deposes to the following:[8]
11.At a high level, as part of carrying on its business, Bartter acts as a 'Processor' and operates hatcheries for the purpose of incubating eggs and producing day old chicks.
12.After the eggs hatch, usually on day 21, Bartter arranges for batches of the hatched chicks to be delivered to and placed at growing farms, where the chicks are then grown to maturity into birds.
13.For that purpose, Bartter enters into contractual arrangements with 'Growers' who operate growing farms, which have the necessary infrastructure to grow and raise the chicks.
[…]
15.When each batch of grown birds has matured, Bartter will then arrange for those birds to be harvested by collecting them from the Growers' sheds and delivering them to a relevant processing plant for processing.
16.Bartter then arranges for the processed meat to be packaged and sold to its customers, which comprise major retailers, quick service restaurant chains and wholesalers.
[8] Mr Rapa's affidavit [11] - [13] and [15] - [16].
Mr Rapa deposes that the Contract and the provided‑for‑production from the defendant's farm comprises about 5% of the plaintiff's production in Western Australia.[9]
[9] Mr Rapa's affidavit [20(c)].
It appears from the evidence that the defendant has sought to sell its farm for some period of time, and it appears that the defendant has been motivated to do so by Mr and Mrs Webb, who are the natural persons behind the defendant, and their desire to get out of the business because of its stresses and strains.
Following a request on 1 November 2024, an officer of the plaintiff sent to the defendant's director an email which indicated that the next batch of chicks would be delivered on 19 to 21 November 2024, and then a further batch would be delivered, it was estimated, between 15 and 17 January 2025.[10]
[10] Mr Rapa's affidavit [34] and attachment 'CPR-20', page 117.
Mr Rapa deposes that on or about 21 December 2024, he had a telephone discussion with one of the natural persons behind the defendant, in which he was informed that:[11]
(1) the defendant had signed a contract to sell the Farm to CF Farms Pty Ltd (CF Farms);
(2) CF Farms operates layer farms, that is, egg farms; and
(3) CF Farms had no intention of carrying on any business as a grower of broiler chickens from the Farm.
[11] Mr Rapa's affidavit [22].
Mr Rapa further deposed to a telephone conversation on 24 December 2022 with a Mr Cocking, who it appears is a director of the purchaser, CF Farms, in which Mr Cocking told him:[12]
(1) that CF Farms had bought the Farm, and the Farm only;
(2) CF Farms operated or operates layer farms;
(3) Mr Cocking is aware that there is a contract to grow broiler chickens, but he is not interested in that contract as he intends to convert the Farm to a layer farm;
(4) Mr Cocking had not seen the Contract and was not interested in seeing it;
(5) Mr Cocking claimed that he had seen many other growing contracts and did not believe that the defendant had an issue with the sale of the Farm;
(6) the offer to purchase the Farm was a solid offer, as was the price to be paid, and so he did not believe the defendant would decline it; and
(7) in his opinion the sale of the Farm was proceeding.
[12] Mr Rapa's affidavit [29].
On 7 January 2025, the same officer of the plaintiff, who had previously sent the communication on 1 November 2024, sent a notice of placement by email to the defendant, confirming that the plaintiff intended to deliver batches totalling 225,300 chicks to the Farm on 15, 16 and 17 January 2025.[13]
[13] Mr Rapa's affidavit [35] and attachment 'CPR‑21', page 119.
A director of the defendant, or one of the natural persons behind the defendant, on the same day replied to the effect that the Farm had been sold and that the new owner would not be taking any chicks.[14]
[14] Mr Rapa's affidavit [36] and attachment 'CPR-22'.
The defendant has filed and relies on the affidavit of Paul Soren Webb (Mr Webb's affidavit) made and filed on 13 January 2025. He gives evidence of being a director of the defendant and being authorised to make the affidavit on its behalf.[15]
[15] Mr Webb's affidavit [1].
Apart from giving some background to the way the Contract worked with the plaintiff, Mr Webb adduced into evidence the contract of sale with CF Farms, which is dated 23 December 2024, and which contains special conditions.[16]
[16] Mr Webb's affidavit [21] - [22] and attachments 'PW-1' and 'PW-2'.
Relevantly, cl 2.2 of the special conditions provides as follows:[17]
2.2On the Contract Date, the Seller agrees to notify Baiada Poultry Pty Limited [ie. the plaintiff] that the Property has been sold and that no further chickens are to be provided or placed on the Property.
[17] Mr Webb's affidavit [22] and attachment 'PW-2'.
Mr Webb deposed to not just the formal agreement but also to having reached an oral agreement with Mr Cocking to the effect that, although the Contract requires vacant possession to be given by 15 February 2025, the defendant agreed with CF Farms that it will give vacant possession on 15 January 2025.[18] Mr Webb's affidavit also adduces an email from his and Mrs Webb's email address to the plaintiff, which indicates that the settlement date for the Farm is 15 February 2025.[19]
[18] Mr Webb's affidavit [20].
[19] Mr Webb's affidavit [25] and attachment 'PW-3'.

Consideration of the merits of the application

Turning to a consideration of the application, I consider it to be trite law that the two questions involved in a grant or otherwise of an interlocutory injunction, that is, that there be a serious question to be tried or a prima facie case and the balance of convenience, are interrelated.
At the hearing before me, counsel for the defendant accepted that there is here a serious question to be tried or a prima facie case that it will breach the Contract because it intends to refuse deliveries of the chicks on 15, 16 and 17 January 2025.[20]
[20] ts 25.
I am satisfied that the plaintiff has a strong prima facie case (rather than a weaker prima facie case) that the defendant does intend to breach the Contract this week.
It seems to me an inescapable conclusion that the defendant is the author of the difficulties that it, the plaintiff, and CF Farms all find themselves in. That is, it seems to me inescapable to conclude that the defendant has, for its own reasons, preferenced its commercial interests over performance of the Contract.
The prejudice which the plaintiff will suffer if the defendant does breach the Contract in the way identified has been put as follows.
Firstly, an inability to safely - and by that, I mean having regard to animal welfare, biosecurity of food and safety standards - put the chicks at alternative growing farms, with the exception of some, to which I will return.
Secondly, if the day old chicks are not able to be placed appropriately on a growing farm and have to be killed immediately, then the plaintiff will lose an estimated $1.20 of profit per chicken, which, for all of the Chicks, would be more than $270,000.
Thirdly, that there will be additional financial costs to the plaintiff to transport processed chicken meat from the plaintiff's facilities in Adelaide to meet its Western Australian supply obligations.
And fourthly, the plaintiff may be placed into default of both key performance indicator requirements and its contracts with its own customers and suffer a loss of reputation.
I broadly accept those four heads of prejudice, and I will return to them below.
There is said to be a further prejudice identified by the plaintiff, which is that as a result of the avian influenza in June 2024 in parts of Australia, there has been a shortage of eggs in the Australian egg market, with approximately 15% of the egg layer industry stock being destroyed. Consequently, it is said that it has become more financially lucrative for layer farmers or egg farmers, such as CF Farms, to purchase grower farms and convert them into layer farms.
Further, the plaintiff submitted that if the defendant is allowed not to perform the Contract, then there are concerns on the part of the plaintiff that other chicken growers may seek to pursue more lucrative financial returns offered by the egg laying industry.[21]
[21] Written submissions in support of application, page 6.
I am unable to make an assessment of that last prejudice that has been asserted and have reservations as to whether that prejudice, even if I were to accept it, is a relevant factor for this particular plaintiff in the absence of any further evidence going to it. I do not take it into account in my consideration.
I have approached this application on the basis of it being an application for a mandatory injunction, notwithstanding the negative way in which it is framed.[22]
[22] This has sometimes been described as a relief analogous to specific performance. See, for example, Sino Iron Ore v Mineralogy Pty Ltd [No. 2] [2017] WASCA 76; (2017) 55 WAR 36 and the cases cited therein.
And, I am deciding it on the basis that it is limited to the 225,300 chicks which were proposed to be delivered on 15, 16 and 17 January 2025.
That is, even though it may be that the indorsed writ and the chamber summons might be read as raising a potentially longer period of time, I am simply considering the deliveries as proposed on 15, 16 and 17 January 2025.
By Mr Rapa's supplementary affidavit, it appears that about 50,700 chicks may be placed by the plaintiff to a farm which is identified as Masons, and the indoor sheds which are identified in a table to that supplementary affidavit as one, two and three.[23]
[23] Mr Rapa's supplementary affidavit [7].
I am not going to make any order in relation to those 50,700 chicks. I consider, as a matter of balancing the conveniences, that the plaintiff has an option which does not involve the defendant for those chicks. I am only considering the balance, which is 174,600 chicks.
As to the balance of convenience, the defendant says that the orders proposed by the plaintiff, even as I have understood or narrowed them, requires the possibility of the court supervising its performance of the Contract, and that the Contract should be properly regarded as being a contract for personal services.[24]
[24] Defendant's submissions [10] - [11].
The plaintiff makes submissions against both those propositions, but for the purposes of assessing the balance of convenience, I consider that there is some danger that any orders that the Court makes may not be as 'clean' as a court order might ordinarily be, in that it might lead to some disputation and potential supervision on the court's part.

Further, although the defendant is a corporate entity, I have approached this as though there are elements of personal services which the defendant would be required by its natural persons to perform to make good any orders made.
The primary matter in the balance of convenience is that the defendant says it is practically impossible for it to take deliveries starting this Wednesday because it cannot be ready.
Mr Webb's affidavit addresses the practical difficulties of accepting a delivery of chicks on 15 January, albeit at a high level of generality. These difficulties relate to the costs and time required to prepare the sheds to accept the delivery of chicks.
While I understand that there may be practical difficulties with taking deliveries on 15 January, I am not persuaded on the evidence that the defendant puts that it is impossible that there could be deliveries at all. In particular, the plaintiff has said that it considers that rather than 15, 16 and 17 January that it can deliver the chicks on 16, 17 and 20 January.
The next matter in the balance of convenience might be summarised under the heading of problems created by the sale to CF Farms, and that is put as prejudice to a third party. It is very difficult, again because of the state of the evidence, for me to make a proper assessment of what prejudice CF Farms will suffer.
Mr Webb also specifies the complications arising from preparations CF Farms has made to take over the Farm.[25] These consist of the following factors:
32.1CF Farms has already made arrangements to purchase and deliver materials to the Farm based on taking possession on 15 January 2025;
32.2CF Farms has ordered chickens to be placed on the Farm upon settlement; and
32.3CF Farms has been planning forward egg sales based on the agreed timeframes.
[25] Mr Webb's affidavit [31] - [32].
It is unclear exactly when Mr Cocking knew of the Contract. It is plain from cl 2.2 of the special conditions to the contract for the sale of land to CF Farms that Mr Cocking knew of the Contract, at least at the time of signing the agreement with the special conditions.[26] There is also some suggestion in the affidavit material that Mr Cocking may have been aware, through conversations with officers of the plaintiff, about the Contract prior to signing the sale contract with the defendant.
[26] Mr Webb's affidavit, attachment 'PW-2'.
But as I said, it is hard for me to make any assessment about that. It is also hard for me to make any assessment about the prejudice that CF Farms might suffer if it was unable to settle on 15 February 2025. I say that because Mr Webb gives some evidence of what CF Farms' position might be.[27]
[27] Mr Webb's affidavit [32].
But, for example, while CF Farms has told Mr Webb that it has made arrangements to purchase and deliver materials to the Farm on 15 January 2025, it is unclear why that could not still occur.[28]
[28] Mr Webb's affidavit [32].
And, Mr Webb deposes that CF Farms has been planning forward egg sales based on the agreed timeframes, but the prejudice that CF Farms might suffer if its planning needs to be re-jigged is not a matter before the Court.
The next matter against or in its argument on balance of convenience is to the effect that the plaintiff is large and can make alternative arrangements.
It appears from the evidence, that the plaintiff has been able to make some alternative arrangements as to 50,700 chicks. And while I accept that the plaintiff is a much larger entity than the defendant, nonetheless, that is not the normal consideration as to whether contracts ought to be performed or not.
Lastly, and as I understand it, put as the second most important factor after the practical impossibility, is the defendant's argument that damages are an adequate remedy. The defendant points to the plaintiff having been able, it says, to quantify its losses to $1.20 profit per chick.
The defendant says that the plaintiff's evidence about the difficulties it may face with its own clients and loss of reputation either do not sound in damages because of cl 4.6 of the Contract or have been expressed at such a level of generality that the Court cannot weigh them heavily into its consideration.
Clause 4.6 of the Contract deals with liability and indemnity, and states the following:
4.6 Liability and indemnity
The Grower is solely liable for and must indemnify the Processor in respect of any reasonable demand, liability, loss, claim, proceeding, verdict, judgment, reasonable costs and expenses, (legal or otherwise) suffered or incurred by the Processor arising as a result of or in connection with:
4.6.1the personal injury to or death of any person, loss or damage to any property (real or personal) in so far as such injury, death, loss or damage arises out of or in the course of or by virtue of the provision by the Grower of its services pursuant to this Contract;
4.6.2any breach by the Grower of its obligations under the Contract, or
4.6.3any wrongful, unlawful, willful or negligent act or omission by the Grower;
excluding any claim for consequential loss. (original emphasis)
In my view, and the parties did not contend differently, and in fact consistently with the way the parties argued the matter, whether damages are an adequate remedy or not is to be taken into account in the balance of convenience. It is not jurisdictional in the sense of whether an injunction may or may not be granted. Certainly, the plaintiff has been able to quantify some of its potential loss, and if that were the only potential loss then the defendant's argument would be that much stronger.
But in my view, this is a case where it is not, or it may not be, straight‑forward to calculate the damages that the plaintiff will suffer. Now, without being exhaustive, two things are in my mind in reaching that conclusion.
The first is that there are obviously going to be potential arguments available as to the scope of cl 4.6 of the Contract and what, by way of damages, is truly consequential within the meaning of the Contract.
The second is the difficulties in proving loss arising out of the loss of reputation, which is that the plaintiff may suffer that loss on breach of the Contract, but have real difficulties in quantifying those, even assuming that it is not the subject of the cl 4.6 arguments.

Disposition

Coming then to the disposition, it seems to me that there are a number of matters, such as the mandatory nature of the orders sought and the practical problems that appear to a greater or lesser extent to be present, which militate against the grant of orders.
But this is a clear breach, or it appears at this stage to be a clear breach, which has been brought about by the defendant's choices and, in particular, its choice to preference its own commercial interests over the plaintiffs. So all other things being equal, I would have been minded to order that the defendant take the deliveries on 15, 16 and 17 January, less the 50,700 chicks which can be put or placed at Masons, as I have described above.
However, I remain concerned and cognisant of the practical difficulties, however generally expressed in paragraph 34 of Mr Webb's affidavit.
What I propose to do, given the parties have been unable to reach an agreement which might take care of some of those practicalities, is to make orders to the following effect:
(1)the defendant, whether by itself, its officers, servants, agents or otherwise be restrained, and an injunction shall be and hereby is granted restraining the defendant from refusing to:
a)accept the Chicks in accordance with clause 4.1.1 of the Contract; and
b)raise the Chicks to maturity in accordance with clause 4.2.1 of the Contract.
I will incorporate the definition of contract and maturity which are in the chamber summons, but the 'chicks' will be defined differently, which is that the number of chicks will be 92,000 chicks on 17 January 2025, and 82,600 chicks on 20 January 2025.
Doing the best I can from the material and the submissions before me, that seems to me to strike the best balance.
I will also order that the defendant can apply on short notice to my chambers to vary the terms of the injunction if there is a proper evidential basis to do so.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IF
Associate to the Hon Justice Howard
20 JANUARY 2025