Born Free Produce Pty Ltd v Perri
[2014] VCC 1503
•9 September 2014 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-01544
| BORN FREE PRODUCE PTY LTD (ACN 083 298 104) | Plaintiff |
| v | |
| ARMANDO PERRI | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 8 and 9 September 2014 | |
DATE OF JUDGMENT: | 9 September 2014 (Revised) | |
CASE MAY BE CITED AS: | Born Free Produce Pty Ltd v Perri | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1503 | |
REASONS FOR JUDGMENT
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Subject: DEBT – COUNTERCLAIM
Legislation Cited: Civil Procedure Act 2010
Judgment: Judgment for the plaintiff – Counterclaim dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Cadman | Stamford Lawyers Pty Ltd |
| For the Defendant | The defendant appeared in person | - |
HIS HONOUR:
1 The plaintiff, Born Free Produce Pty Ltd, is the owner of 160 acres of rural acreage at 50 Hacketts Road in the market garden area of Werribee South. Mr Perri is a market gardener who lives and farms nearby at 100 O’Connors Road, Werribee South. In July 2006, they entered a written agreement for Mr Perri to farm 40 acres of the land rent free, providing he paid the irrigation water charges to Southern Rural Water (SRW), council rates and insurance on the 160 acres.[1] The agreement was renewed in writing over the years and also by later oral agreements.
[1]Exhibit A
2 Pursuant to the various agreements, Mr Perri grew vegetables at various times on the land until about March or May 2012.[2] In July 2008, there was a further agreement for Mr Perri to extend a dam on the land to add to the water storage.[3] Mr Perri agreed to pay all the costs of the construction or extension of the dam.
[2]Exhibits C and E
[3]Exhibit A Addendum - 1 July 2008
3 Over the years Mr Perri fell behind with the water charges and council rates. He engaged contractors to carry out certain construction works by way of the dam extension. Conversations about these arrears and the dam works took place over the years between Mr Perri and Born Free’s manager, Mr C Phang, as well as with two of Born Free’s Singapore-based directors, Mr Hansen Fu and Mr Peter Fu. Born Free gave notice at various times for Mr Perri to vacate the land and then further agreement was reached to allow him to stay on. An example was in July 2010.[4] Similarly, in 2012, notice to vacate by 12 March 2012 was given by Born Free’s solicitors.[5] Again, an extension was agreed on that pushed this out for Mr Perri until 1 May 2012.[6]
[4]Exhibit D
[5]Exhibit C
[6]Exhibit E
Born Free Claim
4 The claim for council rates of $2,023 is admitted by Mr Perri.
5 The dispute centred on the SRW payments made by Born Free, due to Mr Perri being in arrears. The evidence from both Mr Phang and Mr Perri about payments, dates, amounts, conversations concerning the water supply and dam extension was very vague.
6 Pursuant to the powers under the Civil Procedure Act 2010, the Court called on the parties to obtain some primary accounts and records from SRW in regard to water supply. This was to clarify some of the details both parties were vague about and was in the interests of understanding both the claim, Mr Perri’s defences and the counterclaim.
7 Those SRW records, together with exhibits F to Q, establish that Born Free paid three amounts for water charges Mr Perri was liable to pay in the relevant period:
$16,132.00 April 2011
$12,386.00 June 2011
$4,591.00 March 2012
_________
$33,109.00
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8 As the last payment embraced a period beyond when Mr Perri vacated the land, only $3,481.00 is claimed of the March 2012 payment. The total claimed for water charges is therefore $31,999.00 plus interest.
9 Mr Perri’s defence to this claim is that he possibly paid $5,000 to SRW as his bank statements indicated such a cheque on 16 May 2011. It is not clear who the cheque was made out to. In spite of giving Mr Perri extra time to pursue proper records, there is no evidence to indicate this $5,000 payment was to SRW. SRW records do not record it.[7] Mr Perri said several times it was “possibly” paid to SRW. On the probabilities it has not been proved as paid to SRW.
[7]Exhibit 6
10 Mr Perri’s other defence to the water charge claim is really that he was denied access to water by Born Free. He was very vague on the dates. The SRW records lead to my finding that Born Free unilaterally terminated Mr Perri’s access to the irrigation water from 14 February to 26 May 2011.[8]
[8]Exhibits U and V
11 I found Mr Perri, who gave evidence over several days, an unsophisticated man who had a great deal of trouble with paperwork. This applied to his own record keeping as well as comprehending other documents. He was an honest man in my view but very fixed in his opinions at times, even in the face of written evidence. He was not accurate in terms of how long his access to the water was denied by the unilateral actions of Born Free. I find it was probably the three-and-a-half months or 101 days from 14 February to 26 May 2011.
12 At some stage over the years there was a conversation between Mr Phang and Mr Perri about Mr Phang contacting SRW to release water but it is impossible on the evidence of either witness to establish when this was. What is clear is that it was a fundamental condition of all the agreements written, oral and implied that Mr Perri pay the water charges for his access to water which meant he could contact SRW when he wanted a water flow. He was denied that access for the period of 101 days.
13 In spite of Mr Perri’s undoubted disappointment at the lack of farming success from his arrangement with Born Free to farm the land, his obligation to pay the council rates and water charges was clear. He has not paid these. SRW records show the sporadic nature of payments, Mr Perri’s cheques were dishonoured or bounced in a number of years and it seems he was really never up to date with payments. Born Free made the three payments due to Mr Perri breaching the agreements and no doubt to keep the water authority at bay.
14 It is difficult from the SRW accounts or any other documents to establish just what the period of 101 days reflects in charges. I do not have evidence of the cost of the flow of by way of each megalitre, the head charges, the meter or maintenance charges on the channel. At the start of the agreements, council rates and insurance were quantified.[9] None was set out for the water charges. A suggested arithmetical allowance for the period of $4,506.00 was made by counsel for Born Free without, of course, any concession it should be factored in legally. I accept $4,506.00 is a fair and reasonable assessment on one view of the denied access for what was close to a quarter in the year 2011-2012.
[9]Exhibit A
15 I find the Born Free claim has been proved and Mr Perri is liable for:
$2,023.00 Council rates
$31,999.00 Water charges
_________
$34,022.00
Less: $4,506.00 when water access was denied
_________
Total: $29,516.00
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Perri – Dam – Counterclaim
16 Due to a shortage of water, the parties agreed that Mr Perri could extend the dam. The extension works have been agreed on and signed by Mr Perri on 12 October 2009. Unfortunately Mr Perri organised for that work without the necessary permit.[10] This caused Mr Perri delay in the dam extension. Mr Perri agreed to pay for all the dam work. The signed agreement is clear:
“Armando has agreed to pay all the costs of the construction to the contractor … Mad Brothers Earth Moving”.[11]
[10]Exhibit B
[11]Exhibit A Addendum – July 1 2009
17 Work has been undertaken by Mad Brothers. Mr Perri produced two invoices dated 30 October 2008 and 26 November 2009 for amounts owing.[12] While Mr Perri has not received any benefit from the dam extension, he was still legally obliged to pay for it. Born Free have no obligation to pay for that excavation work. For those reasons the counterclaim must be dismissed.
[12]Exhibits 9 and 10
Orders
(1) Judgment for Born Free for $29,516.00, together with interest fixed at $7,747.00.
(2) Counterclaim is dismissed.
18 I will hear the parties as to costs orders.
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