Bourne v Mooney - [2022] NSWCATCD 62

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Bourne v Mooney [2022] NSWCATCD 62
Hearing dates: 28 April 2022
Date of orders: 23 May 2022
Decision date: 23 May 2022
Jurisdiction: Consumer and Commercial Division
Before: M Tyson, Senior Member
Decision:
1. Pursuant to s. 6 of the Agricultural Tenancies Act 1990, the respondents are to pay the applicant compensation in the sum of $174,333.26.
2. The respondents are to pay the applicant’s costs as agreed or assessed.

Catchwords:
AGRICULTURAL TENANCY – Consent of the owner – Tenant improvements – Compensation

Legislation Cited:
Agricultural Tenancies Act 1990 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Gerraty v McGavin (1914) 18 CLR 152
McCann v Coffs Harbour City Council [2015] NSWCATCD 150
Rider v Ford [1923] 1 Ch 541
Wilh. Wilhelmsen Investments Pty Ltd v SSS Holdings Pty Ltd [2019] NSWSCA 32

Texts Cited:
Nil

Category: Principal judgment
Parties:
Courtney Bourne (Applicant)
Ian Geoffrey Mooney (First Respondent)
John Edward Mooney (Second Respondent)
Kerrie Diane Lumsden (Third Respondent)
Representation:
Counsel:
J Tierney (Applicant)
Solicitors:
Blaxland Mawson & Rose (Applicant)
M Fox of Friedlieb Fox Mcleod (Respondents)

File Number(s): COM 21/47133
Publication restriction: Nil

REASONS FOR DECISION

By application filed 11 November 2021 in the New South Wales Civil and Administrative Tribunal, the applicant seeks orders for compensation pursuant to the Agricultural Tenancies Act 1990 (NSW) (“the Act”). The principal issue in the proceedings was whether, for the purposes of s. 6 of the Act, the owner had given consent to improvements carried out by the tenant on the relevant farm.
The matter was heard on 28 April 2022, with the parties appearing by way of an audio-visual linked hearing. Mr. Tierney appeared for the applicant and Mr. Fox appeared for the respondents.

Background

Mr. Courtney Bourne, the applicant, is the lessee under registered lease number AN438113R, for a three-year term commencing 1 February 2018 and ending on 31 January 2022 (“the Lease”). The property leased is located at XX Thirteen Mile Road, Maxwell, New South Wales and is the estate more particularly known as folio identifier 2/830119, as well as all improvements on the property, including all fixtures, fittings, furnishings, plant, machinery and equipment installed by the lessor. The property leased is the farm known as “Willow Haven”. Willow Haven is approximately 840 acres or 340 hectares in area and is located at Maxwell, about 22 kilometres from Wagga Wagga. Willow Haven is a mixed farming property, suitable for sheep, cattle and broad acre farming.
When Mr. Bourne entered the Lease, the owner of Willow Haven was Elizabeth Patricia Mooney. Around the time the Lease commenced, Mrs. Mooney was moving into a retirement home. Mrs. Mooney passed away in March 2021 and her three children, John Mooney, Ian Mooney and Kerrie Lumsden became the registered proprietors of Willow Haven. John Mooney, Ian Mooney and Kerrie Lumsden are the respondents to the application.
Prior to becoming involved with Willow Haven,…

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 Bourne v Mooney

Details

AGLC: Bourne v Mooney [2022] NSWCATCD 62
Case: [2022] NSWCATCD 62
Decision Date: 23 May 2022

CaseChat Overview and Summary

In the matter of Bourne v Mooney, the applicant, Bourne, sought compensation from the respondents, Mooney, for improvements made to a property they leased. The dispute arose under the Agricultural Tenancies Act 1990, and was heard in the District Court of New South Wales. The central issue before the court was whether the respondents had given their consent for the applicant to make the improvements, and if so, whether the compensation awarded was fair and just.

The court examined whether the respondents had expressly or impliedly consented to the improvements made by the applicant. The applicant argued that the respondents had given their tacit approval through their conduct, while the respondents contended that there was no formal agreement or consent. The court found that while there was no explicit written consent, the respondents' behaviour and communications did indicate an implied consent for the improvements. The court further assessed the reasonableness of the compensation amount claimed by the applicant, considering factors such as the value of the improvements, the length of the lease, and the benefit to the property.

The court determined that the respondents' conduct amounted to an implied consent for the improvements, and therefore, the applicant was entitled to compensation. The court accepted the applicant's valuation of the improvements and found that the compensation amount of $174,333.26 was reasonable. The court ordered the respondents to pay this amount to the applicant, along with the applicant's costs as agreed or assessed.

Orders

Orders of the court

1. Pursuant to s. 6 of the Agricultural Tenancies Act 1990, the respondents are to pay the applicant compensation in the sum of $174,333.26.

2. The respondents are to pay the applicant’s costs as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bourne v Mooney [2022] NSWCATCD 62
Hearing dates:	28 April 2022
Date of orders:	23 May 2022
Decision date:	23 May 2022
Jurisdiction:	Consumer and Commercial Division
Before:	M Tyson, Senior Member
Decision:	1. Pursuant to s. 6 of the Agricultural Tenancies Act 1990, the respondents are to pay the applicant compensation in the sum of $174,333.26. 2. The respondents are to pay the applicant’s costs as agreed or assessed.
Catchwords:	AGRICULTURAL TENANCY – Consent of the owner – Tenant improvements – Compensation
Legislation Cited:	Agricultural Tenancies Act 1990 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Gerraty v McGavin (1914) 18 CLR 152 McCann v Coffs Harbour City Council [2015] NSWCATCD 150 Rider v Ford [1923] 1 Ch 541 Wilh. Wilhelmsen Investments Pty Ltd v SSS Holdings Pty Ltd [2019] NSWSCA 32
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Courtney Bourne (Applicant) Ian Geoffrey Mooney (First Respondent) John Edward Mooney (Second Respondent) Kerrie Diane Lumsden (Third Respondent)
Representation:	Counsel: J Tierney (Applicant) Solicitors: Blaxland Mawson & Rose (Applicant) M Fox of Friedlieb Fox Mcleod (Respondents)
File Number(s):	COM 21/47133
Publication restriction:	Nil