Douglas Allen Lloyd v Andrew John Doust - [2018] NSWDC 463

District Court

New South Wales

Medium Neutral Citation: Douglas Allen Lloyd v Andrew John Doust [2018] NSWDC 463
Hearing dates: 19 – 22 March 2018
Date of orders: 22 March 2018
Decision date: 22 March 2018
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
The cross-claim is dismissed.
I order the defendant/cross-claimant to pay the costs of the plaintiff/cross-defendant of the statement of claim on the ordinary basis until 27 October 2016 and thereafter on the indemnity basis. The cross-claim is dismissed. I order the cross-claimant to pay the cross defendant's costs.
Catchwords: CONTRACT HARVESTING WORK – whether harvesting contractor made a contractual promise to start harvesting ten days after the property owner commenced windrowing his canola crop – time being of the essence – consideration of usual practice in Western NSW between croppers and harvesters – whether alleged contract plausible – contract purely oral – consideration or fallibility of human memory with the passage of time whether alleged contract the subject of reconstruction
Legislation Cited: Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Cases Cited: Ahern v Associated Products Pty Limited [2017] NSWDC 185
Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200
Briginshaw v Briginshaw (1938) 60 CLR 336
Camden v McKenzie [2008] 1 Qd R 39
Campbell v Campbell [2015] NSWSC 784
Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 Craig v Silverbrook [2013] NSWSC 1687
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599
Evans and Braddock [2015] NSWSC 249
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560
Harbour Port Consulting v NSW Maritime [2011] NSWSC 813
Helton v Allen (1940) 63 CLR 691 at 712
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep)
McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477
New South Wales v Hunt (2014) 86 NSWLR 226
Nominal Defendant v Cordin [2017] NSWCA 6
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Société d'Avances Commerciales (Sociéte Anonyme Egyptienne) v Merchants Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140
Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; 297 ALR 56
Watson v Foxman (1995) 49 NSWLR 315
Category: Principal judgment
Parties: Douglas Allen Lloyd (Plaintiff)
Andrew John Doust (Defendant)
Representation:
Counsel:
Mr R Notley (Cross-Claimant)
Mr B Le Plastrier (Cross-Defendant)
Solicitors:
Wilsons Solicitors (Cross-Claimant)
Peacockes Lawyers (Cross-Defendant)

File Number(s): 2017/00094108
Publication restriction: Nil

Judgment

The parties

HIS HONOUR:…

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.

Keep reading for free

Create a free CaseChat account to read Douglas Allen Lloyd v Andrew John Doust and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWDC 463
Decision Date: 22 March 2018

CaseChat Overview and Summary

The parties to this proceeding are Douglas Allen Lloyd and Andrew John Doust, the dispute involves a contract for the harvesting of a canola crop. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether there was a contractual agreement that the defendant would commence harvesting ten days after the plaintiff had begun windrowing his canola crop. Additionally, the court had to determine if the specified time was an essential term of the contract and whether the alleged oral contract was plausible, considering the common practices in Western New South Wales between croppers and harvesters.

The court examined the evidence and testimonies to assess the plausibility of the alleged oral contract. It considered the usual practice in the region and the reliability of human memory over time, given the oral nature of the contract. The court determined that the evidence did not sufficiently support the existence of a binding contract as claimed by the defendant. The court found that the alleged contract was not plausible based on the circumstances and the practices in the region.

The court dismissed the cross-claim brought by the defendant. The defendant was ordered to pay the plaintiff's costs of the statement of claim on the ordinary basis until 27 October 2016 and thereafter on the indemnity basis. The court also ordered the defendant to pay the costs of the cross-claim.

Orders

Orders of the court

The cross-claim is dismissed.

I order the defendant/cross-claimant to pay the costs of the plaintiff/cross-defendant of the statement of claim on the ordinary basis until 27 October 2016 and thereafter on the indemnity basis. The cross-claim is dismissed. I order the cross-claimant to pay the cross defendant's costs.

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:	Douglas Allen Lloyd v Andrew John Doust [2018] NSWDC 463
Hearing dates:	19 – 22 March 2018
Date of orders:	22 March 2018
Decision date:	22 March 2018
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	The cross-claim is dismissed. I order the defendant/cross-claimant to pay the costs of the plaintiff/cross-defendant of the statement of claim on the ordinary basis until 27 October 2016 and thereafter on the indemnity basis. The cross-claim is dismissed. I order the cross-claimant to pay the cross defendant's costs.
Catchwords:	CONTRACT HARVESTING WORK – whether harvesting contractor made a contractual promise to start harvesting ten days after the property owner commenced windrowing his canola crop – time being of the essence – consideration of usual practice in Western NSW between croppers and harvesters – whether alleged contract plausible – contract purely oral – consideration or fallibility of human memory with the passage of time whether alleged contract the subject of reconstruction
Legislation Cited:	Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth)
Cases Cited:	Ahern v Associated Products Pty Limited [2017] NSWDC 185 Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Briginshaw v Briginshaw (1938) 60 CLR 336 Camden v McKenzie [2008] 1 Qd R 39 Campbell v Campbell [2015] NSWSC 784 Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 Craig v Silverbrook [2013] NSWSC 1687 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 Evans and Braddock [2015] NSWSC 249 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 Helton v Allen (1940) 63 CLR 691 at 712 Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep) McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477 New South Wales v Hunt (2014) 86 NSWLR 226 Nominal Defendant v Cordin [2017] NSWCA 6 Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 Société d'Avances Commerciales (Sociéte Anonyme Egyptienne) v Merchants Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140 Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315
Category:	Principal judgment
Parties:	Douglas Allen Lloyd (Plaintiff) Andrew John Doust (Defendant)
Representation:	Counsel: Mr R Notley (Cross-Claimant) Mr B Le Plastrier (Cross-Defendant) Solicitors: Wilsons Solicitors (Cross-Claimant) Peacockes Lawyers (Cross-Defendant)
File Number(s):	2017/00094108
Publication restriction:	Nil