Elders Limited v Flinn & Anor
[2009] VSC 234
•1 June 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT WARRNAMBOOL
COMMON LAW DIVISION
No. 7782 of 2002
| ELDERS LIMITED | Plaintiff |
| v | |
| BERNARD ROBERT FLINN and MARY FLINN | Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 1 June 2009 | |
DATE OF RULING: | 1 June 2009 | |
CASE MAY BE CITED AS: | Elders v Flinn | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 234 | |
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Adjournment of trial – first defendant materially incapacitated by ill health – prospect of improvement – refixed for later date.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Hoyne | Corrs Chambers Westgarth |
| For the Defendant | Mr W. Gillies | N/A |
HIS HONOUR:
Can I say for the benefit of counsel in other matters that I do propose to accede to Mr Gillies' application for adjournment and I will now explain my reasons for that course.
In this matter the plaintiff sues principally in respect of monies advanced to the defendants for the purpose of purchase of stock and secured by a stock mortgage in 2001.
The proceedings commenced in October 2002. The amended defence and counterclaim which is now relied on, runs to some 31 pages and raises complex allegations of fact relating to the course of dealings between the parties. In significant part those allegations will turn on the evidence of the first defendant and I instance the following matters:
Under paragraph 36, the particulars state,
In May 2000 Robert Flinn inquired of Tom Hose whether he knew of a dairy farm for lease and of a dairy herd for purchase or lease. Very shortly thereafter Hose contacted Flinn and advised that the share farmer of a client had given short notice that the share farmer would vacate the Lees Diary Farm on 29 May 2000 and that the owner of the land and herd was in a desperate situation to find a lessee for the land and to take over or purchase the herd effective from 1 June 2000. Flinn inspected the property with his wife and son Luke and expressed interest in taking up a lease of the land and in purchasing the herd, subject to the Defendant's obtaining finance to effect the purchase of the herd in the absence of which they would not be interested nor in the position to take up the lease of the land. Flinn deferred further conversation with Hose pending confirmation that finance was available from a livestock financier called ‘Cow Bank’. Shortly thereafter, Flinn was advised that Cow Bank would not finance the acquisition of the herd and Flinn communicated this to Hose. Hose invited the Defendants to meet with the Plaintiff's branch manager, Clark Roycroft, who had formed an opinion as to the value of the herd. The defendants met with Hose and Roycroft in Roycroft's office at the Plaintiff's premises in Camperdown on or about 28 May 2000 in the course of which the Bookaar dairy farm land was offered to the defendants to lease and the 350 cow herd was offered to the defendants to purchase upon certain terms, and wherein time was of the essence.
The defendants allege that they proceeded to enter into a first purchase agreement of stock dated 29 May 2000, and a lease for five years of dairy farm land at Bookaar, and entered into possession of land and executed a cattle lease in respect of livestock at a rate above market rates; all in reliance upon an undertaking that the plaintiff would refinance the defendants previous obligations to Dalgetty/Wesfarmers and also finance the new stock purchase and lease of the land.
Going over then to the particulars under paragraph 48 (although in so doing I am emphasising the factual narrative rather than the pleading as a whole),
Between June and October 2000 Robert Flinn maintained regular contact with Roycroft. He had contact with him in the ordinary course of their joint business. Flinn sought confirmation that finance would be forthcoming and Roycroft orally assured Flinn that the finance was in progress and Roycroft did not qualify his assurances. The Plaintiff progressed the rural finance application on the Defendant's behalf in or about 1 September when finance was not forthcoming. Flinn spoke to Roycroft to advise that the Defendants should continue in occupation of the Bookaar dairy land and should continue to lease the cattle at the same rent despite the detriment caused to the Defendants by the above market rent for same, which rent Flinn said was ‘killing him’ and the Defendants should maintain their operations ‘until we get it settled’, or words to that effect.
Then going over further to the particulars under paragraph 54,
On or shortly prior to 12 November 2000 Clark Roycroft the then manager of the Plaintiff's Camperdown office telephoned the Defendants and said he had something to discuss. Roycroft asked the Defendants if they would attend him at his office in Camperdown which the Defendants did either that day or the day following. On arrival at the Plaintiff's premises Roycroft ushered the Defendants into his office and handed to Robert Flinn a three page agreement and told the Defendants to sign ‘this’. Robert Flinn read the document and having read it said words to the effect, "I can't sign this. If I sign this Lee can crucify me any time he likes…". Robert Flinn referred to clause 2 of the second sale and purchase agreement which provided that ‘The purchase price should be paid in full upon the vendors' giving 14 days' notice in writing to the purchasers’. Maureen Flinn said she would not sign the document whereupon Roycroft insisted, saying that the Defendants had to sign the document ‘Otherwise we can't go on’, and using words to that effect. Meaning and intending to convey their bias the Defendants understood that the Plaintiff would not facilitate financing the Defendant's acquisition of the livestock unless the Defendants signed the second sale and purchase agreement. Robert Flinn told Roycroft that the document had the capacity to destroy the Defendants whereupon Roycroft said words to the effect that the document was not worth the paper that it was written on and that his purpose was to shut Lee up and Roycroft gave his word that the second sale and purchase agreement would never be forced upon the Defendant. In the course of the meeting, which to that point had extended to about ten minutes, Roycroft repeated words to the effect that ‘We have to do this to carry on’. In the course of the meeting Roycroft took a telephone call from a person whom he later confirmed was John Lee. The Defendants signed the second sale and purchase agreement believing as represented by Roycroft that they were liable to the vendor, Allanby Pastoral Company Pty Ltd under the first sale and purchase agreement in the sum of the full purchase cost of the supplied stock and that they then had no commercial alternative other than to sign the second sale agreement, in particular because the livestock were about to come into full milk production in which they were critically dependant as the plaintiff well knew.
I shall not quote further from the defence and counterclaim but the above particulars, in my view, convey accurately the flavour of the defence which is to, as I have said, make detailed allegations about the negotiations between the defendants and the staff of the plaintiff in association with the dealings that were entered into at the time of and subsequent to the agreement upon which the plaintiff sues.
In my view it is apparent that the nature of the defendants' allegations is such that their case will depend in large part upon the first defendant's capacity to give coherent and sensible evidence and the presentation of their case will require the putting of a relatively complex narrative to the plaintiff's witnesses and some argument as to the nature and consequences of the dealings between the individuals which gave rise to the transactions upon which the plaintiff now sues.
The defendants now seek an adjournment of the hearing of this proceeding and that adjournment if granted will be an adjournment from what is the eighth trial date fixed in this matter.
In large part the previous adjournments have been for the benefit of the defendants but in May 2008 the matter was adjourned due to the unavailability of one of the plaintiff's witnesses (who has since died).
The current application is principally made on the basis that the first-named defendant is recovering from radiotherapy which he received over some eight weeks early this year. At that time he underwent some six sessions a week and reliance is placed on the letter from his consultant urologist, Robert Forsyth, dated 20 March 2009.
That letter states in part,
As you no doubt are aware [Mr Flinn] has been undergoing treatment for prostate carcinoma. He completed his external beam radiotherapy course in February 2009. He is progressing satisfactorily following on from the treatment although he is experiencing some of the anticipated side effects post radiotherapy. The greatest concern to him is urinary urgency and the inability to defer the desire to pass urine. He is also feeling somewhat lethargic, once again an expected side effect of radiotherapy. Robert expressed some concern as to the ability to manage during the court case with the above symptoms. I have reassured him that these are generally temporary in nature and would anticipate should have largely settled six months out from his treatment completion.
I have an appointment to review his progress in June and would expect that his symptoms should have settled down satisfactorily by late July to allow him comfortably proceeding with this case.
In turn the first defendant, Mr Flinn himself, has given evidence before me that he currently suffers from continuing problems with his bowels, from problems with lethargy and with dizzy headaches. He says that he is not currently in a fit state to conduct the defendants' case properly but wishes to proceed with it and hopes to be in a position to do so at the October sittings.
There was no cross-examination of Mr Flinn suggesting that I should reject his evidence as to the symptoms from which he currently suffers or that I should reject his evidence that he is not in a fit state to conduct the defendants' case properly at the present time or that the adjournment application is a sham.
Mr Flinn, who is now a pensioner, further gave evidence that he will seek to obtain funding from his son, to enable the defence of the action with legal representation and he incidentally gave evidence that his son continues to hold some 25 or 26 of the cattle, which were the subject of the stock mortgage on which the plaintiff sues. The balance he says have all been sold through the plaintiff’s agency or are dead.
Ultimately, this is a difficult case in which to weigh up the positions of the parties. I accept the plaintiff’s submission that it is overdue for trial, but Mr Forsyth’s report in my view provides sufficient confirmation of the symptoms to which Mr Flinn himself has deposed to establish the defendants have genuine difficulties in proceeding today. Mr Forsyth also provides a prognosis which suggests that he may well be in a materially better state to proceed in October. It seems to me, given that it is likely this case will run for some five or six days and will involve factual issues of the sort of complexity to which I initially adverted, that as a matter of fairness the matter should be put over to the start of the next sittings, in Warrnambool, in October of this year.
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