Grainger v Williams - [2005] WASC 286

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GRAINGER & ANOR -v- WILLIAMS & ORS [2005] WASC 286

CORAM: SIMMONDS J

HEARD: 19-23, 26, 27 & 29 JULY, 2 & 3 AUGUST, 7-10, 13 SEPTEMBER, 2 DECEMBER 2004

DELIVERED : 23 DECEMBER 2005

FILE NO/S: CIV 2339 of 2002

BETWEEN: GEOFFREY ORMOND GRAINGER
JOAN HARRINGTON GRAINGER
Plaintiffs
AND
GALE CURTIS WILLIAMS
First Defendant
RUTH EILEEN WILLIAMS
Second Defendant
MARK CURTIS WILLIAMS
Third Defendant

Catchwords:

Property law - Wilful holding over of property - Refusal to yield vacant possession at date of termination of lease - Imperial Statute 4 Geo 2, c 28 (1731) in force - Whether holding over wilful and contumacious - Quantum of "yearly value" - Whether expert opinion based on facts observed by the expert

Trespass - Damages for trespass - Damages available even though plaintiffs were not in actual possession - Loss of use value equivalent to mesne profits - Mesne profits equivalent to "yearly value"

Property law - Failure to remove caveats over titles to land - No statutory basis for compensation for failure to remove caveats - Whether cost of removal of caveats is loss consequential on trespass

Property law - Leases - Breach of covenants - Failure to manage land so as to maintain its value - Failure to apply superphosphate - Cost of necessary repair is the diminution in the value of the reversion due to the breach

Legislation:

4 Geo 2 c 28 (1971), s 1

Transfer of Land Act 1893 (WA), s 140

Result:

Plaintiffs' claim in trespass succeeds
Plaintiffs' claim for breach of covenant to apply superphosphate succeeds
Plaintiffs' action otherwise fails

Category: B

Representation:

Counsel:

Plaintiffs:     Mr M G Clay
First Defendant             :     Mr J C Curthoys
Second Defendant         :     Mr J C Curthoys
Third Defendant           :     Mr J C Curthoys

Solicitors:

Plaintiffs:     Martin de Haas
First Defendant             :     Arns & Associates
Second Defendant         :     Arns & Associates
Third Defendant           :     Arns & Associates

Case(s) referred to in judgment(s):

Clifton Securities Ltd v Huntley [1948] 2 All ER 283
Combara Nominees Pty Ltd v McIlwraith‑Davey Pty Ltd (1991) 6 WAR 408
Edmonds v Donovan [2005] VSCA 27
French v Elliott [1959] 3 All ER 866
Grainger & Anor v Williams & Ors [2000] WADC 296
Grainger v Williams & Ors [1999] WADC 57
His Grace Metropolitan Petar v Macedonian United Society of Western Australia [2003] WASC 15
Hooke v Holland [1984] WAR 16
John Street Marina Pty Ltd v Minister for Transport [2005] WASC 171
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Joyner v Weeks [1891] 2 QB 31
Lloyd v Rosbee (1810) 170 ER 1216
Marsden v Edward Heyes Ltd [1927] 2 KB 1
McKellar & Anor v Singh [1999] WASC 145
Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1
Pownall & Ors v Conlan Management Pty Ltd & Anor (1995) 12 WAR 370
Robinson v Learoyd (1840) 151 ER 673
Southport Tramways Co v Gandy [1897] 2 QB 66
Williams & Ors v Grainger & Anor [2002] WASCA 87
Wilson v Kelly [1957] VR 147
Woorarra Pastoral Co Pty Ltd v Cash, unreported; SCt of Vic (Adams J); 25 June 1971

Case(s) also cited:

Dunlop v Macedo (1891) 8 TLR 43
Nilan v Nilan (1951) 68 WN (NSW) 271
Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360
Vacuum Oil v Wiltshire (1945) 72 CLR 319

SIMMONDS J:

Introduction

This is an action heard before me with another, CIV 2156 of 2000. Both of these actions arose out of the expansion plans of the Williams family, Mr Gale Williams, his wife Ruth and their son Mark, who had had farming operations for many years in the Newdegate - Jerramungup ‑ Fitzgerald area in the south east of this State. Those plans led to transactions to expand the family's operations on to properties owned by the Graingers in the same area. Those transactions with the Graingers, Mr Geoffrey Grainger and his wife Joan, were of the sort, apparently common in such cases, to lease the Graingers' properties with options to purchase them. There was also a transaction to purchase one of the properties.
This action was commenced by the Graingers in the District Court as CIV 237 of 1999, claiming principally possession of their properties, double the yearly value of one of the properties for wilfully holding it over until possession of it was delivered up, damages for trespass to both properties, mesne profits until possession of the properties was delivered up, damages for failure to remove caveats on the titles to the properties, damages for breaches of the leases and interest. Some time after that action was commenced, the Williams family vacated the properties and subsequently the Graingers sold the properties.
While the Williams family were in possession of the Graingers' properties, summary judgment was obtained for the plaintiffs in CIV 237 of 1999: Grainger v Williams & Ors [1999] WADC 57, Deputy Registrar Hewitt. The Deputy Registrar ordered a stay on possession pending an appeal against his decision. The award of summary judgment was upheld on appeal: Grainger & Anor v Williams & Ors [2000] WADC 296, Yeats DCJ. An appeal against that decision was dismissed for want of prosecution: Williams & Ors v Grainger & Anor [2002] WASCA 87, Malcolm CJ, Wallwork J and Olssen AUJ.
Following his decision, Deputy Registrar Hewitt had also ordered, among other things, that the entitlement of the plaintiffs to compensation and/or damages for the defendants' occupation of the land be assessed by a Judge in open court. On 22 August 2002 Hasluck J ordered that the District Court action CIV 237 of 1999 be remitted to continue in this Court, where it became CIV 2339 of 2002. On 17 May 2004 Pullin J made orders for the trial in CIV 2339 of 2002 that, among other things, the plaintiffs deliver to the defendants a copy of each of the documents which the plaintiffs intended to tender in CIV 2339 of 2002, the defendants include the documents to be tendered by the parties in the trial bundle prepared by the defendants pursuant to the trial directions made in CIV 2156 of 2000, and, subject to the directions of the trial Judge, CIV 2339 of 2002 be heard at the same time as CIV 2156 of 2000, and the evidence in CIV 2156 of 2000 should be the evidence in CIV 2339 of 2002. As the trial Judge I did not make other orders as to the hearing of the evidence in CIV 2339 of 2002.
This judgment is being issued with the judgment in the other action, CIV 2156 of 2000. The latter judgment sets out matters which also represent the factual background to this action, in some detail. Accordingly, this judgment makes considerable reference to the judgment in that action. References to exhibit numbers and transcript pages are to the exhibits and transcript in CIV 2156 of 2000.
This judgment proceeds by first setting out the factual background in sufficient detail to understand the balance of the judgment. Then this judgment deals with each of the heads of claim of the plaintiffs.

Factual background

As I found in CIV 2156 of 2000, Geoffrey and Joan Grainger were registered proprietors of a farm in the Fitzgerald area of the south of this State. This farm was called Kensey Park and comprised two adjoining properties, Kent Location 1658 and Kent Location 1659, of which Geoffrey and Joan Grainger were the registered proprietors (Exhibits 82 and 83, respectively). The latter is the larger of the two properties. Between 1972 and 1991 Geoffrey and Joan Grainger with their son Peter farmed Kensey Park. Geoffrey then ceased to be actively involved in the farm, but his son Peter continued to farm it until 1998.
In October or November 1997, if not slightly earlier, a family decision was made to sell Kensey Park. Following a sequence of events described in detail in my judgment in CIV 2156 of 2000, Geoffrey and Joan Grainger entered into a number of agreements with respect to Kensey Park with members of the Williams family – Gale and Ruth and their son Mark. In my other judgment I explain why I found that on 18 May 1998 Geoffrey and Ruth Williams signed "for and on behalf of the Brown Trust", as lessee, an agreement to lease Kent Location 1659 (Exhibits 28 and 113) and a separate agreement to lease Kent Location 1658 (Exhibits 27 and 115) from Geoffrey and Joan Grainger. In that judgment I also explain why I found that on 20 May 1998 Gale and Mark Williams signed "for and on behalf of the Mallee Trust The Trustee Mark Curtis Williams", as purchaser, a contract by offer and acceptance to purchase Kent Location Number 1658 from Geoffrey and Joan Grainger (Exhibit 29). Subsequently, on 17 August 1998, Mark Williams purported to rescind the contract of purchase for certain misrepresentations, but without effect on the leases. In my other judgment I indicate why I have concluded these were indeed the effects of what he did. Efforts to achieve a subsequent purchase of Kensey Park made by the Williams family were unsuccessful.
The leases had terms in them that, as was determined in the summary judgment decision of Deputy Registrar Hewitt, meant they both terminated on 18 December 1998 (in the case of the lease of Kent Location 1659, because there had been no settlement of the sale of Kent Location 1658 by that date). There was an express provision in the lease of Kent Location 1659, but not of Kent Location 1658, for the lessee "to have the right of access to harvest any crop sown by them for the 1998/1999 Season", which it appears was intended to operate to the extent necessary after 18 December 1998 passed without settlement of the sale of Kent Location 1658. However, notwithstanding those provisions, and correspondence with the then solicitors for the Williams family from the solicitors for the Graingers, both before 18 December 1998 (Exhibit 148) and on and after that date (Exhibits 149 and 150), the Williams family did not give up possession of Kensey Park until 29 February 2000. I return below to the conclusions I reached in my judgment in CIV 2156 of 2000 as to why the Williams family so acted.
I turn now to consider the heads of claim by the Graingers in the action remitted to me. I do not need to deal with the claim for possession, as that was gained as I have indicated.

Debt of double yearly value of Kent Location 1659

The basis for this claim, which is against Gale and Ruth Williams only, is the wilful holding over of that property. This is based on their liability as tenants for refusal to yield vacant possession at the date of termination of the lease. That date was, as I have indicated, 18 December 1998.
The claim as to Gale and Ruth Williams in any other capacity than as trustees of the Brown Trust would, on the face of it, fail, as the evidence establishes that the Brown Trust was the Lessee under the lease, and both Gale and Ruth Williams signed "for and on behalf of" that Trust (Exhibit 28). This was also the case for the lease for Kent Location 1658 (Exhibit 27). An agent entering into a contract on behalf of a disclosed and named principal does not thereby become a party to the contract: Reynolds, FMB Bowstead on Agency 16th ed Sweet and Maxwell, London, 1996, at Art 111. This is absent any contractual undertaking by the agent: Bowstead on Agency, at Art 112. Such an undertaking is not apparent here, at least on the face of it.
Further, the evidence establishes that Ruth, but not Gale, Williams was trustee of the Brown Trust at all material times (Witness Statement of Ruth Williams, Exhibit 38, par 9). The trustee is personally liable for the debts and other liabilities incurred on behalf of the Trust: Jacobs' Law of Trusts in Australia, 6th ed, R P Meagher and W M C Gummow, eds, Sydney, Butterworths, 1992 at [2102] and following. Thus, on the face of it, Ruth Williams, but not Gale Williams, would be liable as Lessee under the lease of Kent Location 1659.
However, the defendants in their defence in these proceedings admit the plaintiffs' plea that "by agreements in writing dated 18 May 1998 the plaintiffs as lessors let the first and second defendants as lessees" Kent Location 1658 and Kent Location 1659. In the face of that admission, which was not sought to be retracted at trial, it does not appear to me that Mr Gale Williams can deny his liability as a lessee on the leases alongside that of his wife.
The claim for double yearly value rests on the liability of tenant arising under an Imperial statute, 4 Geo 2, c 28 (1731), s 1 of which is as follows:
"For securing to lessors and land owners their just rights, and to prevent frauds frequently committed by tenants, BE IT ENACTED, that in case any tenant or tenants for any term for life, lives, or years, or other person or persons, who are or shall come into possession of any lands, tenements, or hereditaments, by, from or under, or by collusion with such tenant or tenants, shall wilfully hold over any lands, tenements, or hereditaments, after the determination of such term or terms, and after demand made and notice in writing given, for delivering the possession thereof, by his or their landlords or lessors, or the person or persons to whom the remainder or reversion of such lands, tenements or hereditaments shall belong, his or their agent or agents thereunto lawfully authorized; then and in such case such person or persons so holding over shall, for and during the time he, she and they shall so hold over, or keep the person or persons entitled out of possession of the said lands, tenements and hereditaments, as aforesaid, pay to the person or persons so kept out of possession, their executors, administrators or assigns, at the rate of double the yearly value of the lands, tenements and hereditaments so detained, for so long time as the same are detained, to be recovered in any of his majesty's courts of record, by action of debt whereunto the defendant or defendants shall be obliged to give special bail, against the recovering of which said penalty there shall be no relief in equity."
There was a written notice from the solicitors for the Graingers to the solicitors for Ruth and Gale Williams prior to the termination of the lease at Kent Location 1659 stating that "Our clients require that your clients vacate the leased properties at the end of the leases on 18 December 1998" (Exhibit 148).
It was put to me by the defendants that it had not been shown how this statute remained in force in this State. The question is not, of course, an evidentiary one, but one of law.
The relevant law is that "statutes of the Parliament of the United Kingdom of general application in force on 1 June 1829 were inherited if they were suitable for local conditions": Law Reform Commission of Western Australia, Report on United Kingdom Statutes in Force in Western Australia, Project No 75 (1994), at 1. Those Imperial statutes remain in force unless repealed.
There seems to me to be no reason to consider "local conditions" in Western Australia made the 1731 Statute not "suitable". Indeed, I note there are modern equivalents to the provisions of the statute in several States, although another has repealed it (Report on UK Statutes (supra), at 63 ‑ 64, indicating the view of the Law Reform Commission that the statute applies in Western Australia, but recommending "consideration" be given to its repeal). Nor is there any indication the statute has been repealed in this State. I should add that I have not, however, been able to find any decisions of courts in this State on the statute.
It was not contested before me that the lease of Kent Location 1659 was a lease for a term to which the provision of 1731 Statute would apply. In any event, it seems clear to me that the lease of Kent Location 1659 is not a periodical lease: see Lloyd v Rosbee (1810) 170 ER 1216.
However, two other issues arise in respect of the application of the statute in this case. One is whether the tenants did "wilfully hold over". The other is the "yearly value" of Kent Location 1659.
As to the matter of whether the tenants wilfully held the property over, the authorities on the statute acknowledge it was intended to apply to a "wilful and contumacious holding over, and not to a bona fide holding over by mistake", and "therefore a statute holding over under a fair claim of right is not within the act although it be decided eventually that he has no right": J M Lely, Chitty's Statutes, 5th ed, v VI, London, Sweet and Maxwell and Stevens, 1895, at 20, citing authorities; French v Elliott [1959] 3 All ER 866, Paull J, at 874. In my decision in CIV 2156 of 2000 I explain why I found the Williams family remained on the Graingers' properties, including Kent Location 1659, in part because they believed, on legal advice, they had the right to do so. This was until they left on 29 February 2000, when that advice indicated they no longer had any such right.
I conclude, therefore, there is no basis for the claim under the 1731 Statute. This would then take me to the claims in the alternative, as to Gale and Ruth Williams, for damages for trespass to Kent Location 1659 and mesne profits from that property, which I reach below.
However, there was, as I have said, a second issue in respect to the application of the 1731 Statute to the tenants. This has to do with the "yearly value" of Kent Location 1659. Notwithstanding my decision on the previous issue, I deal with the second one. This is both in case I am in error on the previous issue, and because some of the issues that arise in dealing with the "yearly value" are also relevant to the alternative claims made for damages for trespass and for mesne profits, as will appear.
The "yearly value" in the statute is what:
" ... an occupier would give and the landlord would otherwise have received for the use of the freehold and everything connected with it during the time that the possession is withheld."
Chitty's Statutes (supra), at 21, citing Robinson v Learoyd (1840) 151 ER 673, Part B, at 675. Double yearly value is not the same, however, as double annual rent, as the former is in the nature of damages: Halsbury's Laws of Australia, at [245‑4465]. There is some doubt whether receipt of a rent payment after termination is a waiver of the right to double value: Halsbury, [245‑4465]. Here, however, the evidence is that, although the Williams family continued to send cheques for the rent for Kent Location 1659 to the Graingers, the Graingers did not accept them until the order of Deputy Registrar Hewitt staying the Grainger's action for possession pending the appeal against a summary judgment decision (Exhibit 144). As part of the orders made at that time, the Registrar also ordered that the Williams pay such sums to the Graingers (see also re‑examination of Geoffrey Grainger, t/s 2003 ‑ 2006.
The claimed "yearly value" of Kent Location 1659 was made up of the following (amended statement of claim in District Court No 237 of 1999, par 10.1):
"10.1The First and Second Defendants became liable to pay to the Plaintiffs double the yearly value of KL 1659 as a debt during the time the Defendants wrongfully hold over.
PARTICULARS OF DOUBLE VALUE
The sum of $13,671.90 to the date of issue of the Writ of Summons calculated at $414.30 per day and thereafter at the rate of $414.30 per day to the date the Defendants deliver up possession to the Plaintiffs made up of two times the following components of yearly value:
(a)current market rent of $52,590 per annum at $15.00 per acre;
(b)cost of rates at the rate of $1,764.88 per annum;
(c)cost of insurance premiums at the rate of $807 per annum; and
(d)cost at the rate of $20,448 per annum for purchase, supply and application of 60 kg of superphosphate per annum per cleared and pastured hectare over 1,420 hectares calculated at $14.40 per hectare per annum."
In support of the items so indicated, the plaintiffs sought to rely on the affidavit of Geoffrey Grainger, filed for the purpose of the application for summary judgment in District Court action CIV 237 of 1999, and on the annexures to the affidavit. This affidavit, with certain deletions and qualifications in certain respects (which I will reach shortly), was stated to be referred to and relied upon "so far as remains relevant" in a witness statement of Geoffrey Grainger received into evidence in this trial (Exhibit 129). At its admission, I indicated I understood this stated reliance was to be treated as the incorporation by reference, as evidence in this action, of the nominated paragraphs and annexures from the affidavit, with the amendments and qualifications I will come to. Counsel for the Graingers appeared to agree that this was the correct understanding. Two of the annexures to the 22 April 1999 affidavit were tendered separately (Annexures GG7 and GG9, respectively Exhibits 142 and 141). I return to these and some other annexures to the 22 April 1999 affidavit below. It is only to the extent that this affidavit and its annexures were in evidence through the witness statement (Exhibit 129), that the affidavit is evidence in these proceedings, in my view. As I will note, however, there is other evidence that may also be referred to in connection with matters in that affidavit.

As to current market rent, the figure claimed is based on 3,506 acres ($52,590 divided by $15 per acre) or approximately 1,419 hectares (at the conversion rate of 1 hectare to every 2.47 acres, a conversion rate that was accepted in the evidence before me). The total acreage appears to be based upon Geoffrey Grainger's estimate of the "cleared and pastured land" making up Kent Location 1659 (see Exhibit 129, incorporating by reference the affidavit of 22 April 1999, par 8). At least part of the basis of Geoffrey Grainger's estimate is another estimate, supplied by Geo Task (Australia), which is in turn based on "interpretation of aerial photographs and the property owners' own observations". The Geo Task estimate was by letter dated 6 April 1999, which is Annexure GG6 to Mr Grainger's 22 April 1999 affidavit. The Geo Task estimate gives the figure as 1,400.737 hectares. This estimate was described by Geo Task as a "guide only".
However, another, later estimate, from a Mr Phillip Tasker of Geo Task, was provided as part of his opinion and is the substance of his expert evidence in CIV 2156 of 2000 (Exhibit 86), as to the total "cleared" land for Kensey Park. Mr Tasker put the figure for Kent Location 1659 at 1,381 hectares. This figure was also based on aerial photographs, and on discussion with the land owners.
The figure of 1,381 hectares included, as my judgment in CIV 2156 of 2000 explains, a portion of Kent Location 1659 which apparently was within a conservation covenant registered on the title, but not within the conservation deed on which the covenant was based. The conservation deed was between the land owners (the Graingers) and the relevant government instrumentality. As my other judgment explains, land within a conservation covenant may not be "cleared". However, there was some indication in the evidence that this difference between the registered covenant and the deed might be resoluble between the government instrumentality and the land owners, so as to rectify the covenant. On that basis, it would seem to me that the land could reasonably be included as part of the cleared total.
The figure of 1,381 hectares also included, as my judgment in CIV 2156 of 2000 indicates, an area within a paddock (paddock 5) as to which there was some question whether the extent of regrowth on it might prevent it being seen as "cleared". This area was apparently included after discussion with Mr Grainger. There was also evidence, as my judgment in CIV 2156 of 2000 indicates, of some ambivalence from Mr Gale Williams as to whether or not the paddock could be treated as simply requiring "cleaning up". On that basis it seems to me to be reasonably included as part of the cleared total.
In my judgment in CIV 2156 of 2000, I make findings as to the area of Kensey Park that represents its "combine acres". Combine acres represent the area over which a combine had been run in recent times for the purpose of sowing the acres for crops. During the discussions that led up to the contract of sale of and leases over the farm, the Graingers had provided to the Williams family a "mud map" showing the combine hectares for each of the paddocks in Kensey Park. In my judgment in CIV 2156 of 2000, I outline the basis for and extent of my finding that the total derived from that document was an overstatement of the combine acres of Kensey Park. For present purposes, and for the reasons appearing in that judgment, the combine acreage I found would be less than the acres cleared, over which a combine might be run.
In my view, weighing all of this evidence, Mr Tasker's evidence is the best as to the "cleared and pastured acres" before me. That evidence was in an elaborate form, by a licensed surveyor, who had consulted with the land owners. Mr Geoffrey Grainger's assessment, by contrast, was expressed as an approximation, based on an earlier, much less elaborate, and qualified, opinion of the surveyor's employer.
This takes me to the rate of $15 per acre applied to the total. The evidence for this, on which the plaintiffs put their principal reliance, appears to be that of a Mr David Rees. An annexure to Mr Grainger's 22 April 1999 affidavit (GG7) was a note or memorandum from Mr Rees to Mr Grainger dated 21 April 1999, which became Exhibit 142. That note or memorandum stated:
"As discussed, I would like to suggest that lease values on Kensey Park, as of December 1998, would have been at least $40 per croppable hectare. This value would have attracted good long term cropping management.
Values at the peak could have been almost twice this figure, and certainly figures of $55 a hectare were achieved. However the $40 a hectare figure could have been eaily [sic] achieved, and attracted top management."
The "leasing value" of $40 per hectare is equivalent to $16 per acre (using the conversion rate for hectares to acres above). In the substance of Mr Rees' expert evidence (Exhibit 140), he states (at par 9):
"In December 1998 and January 1999, the fair market annual lease rent for Kent Location 1658 and 1659 were in my opinion at least $28,000 and $55,000 respectively plus outgoings and farm management obligations. This opinion is based on my personal knowledge of leases entered into over that period and my personal knowledge of the farm, its quality, its overall area and the area of land cleared (for cropping or grazing) apparent from any personal inspection. Annual lease rent obtained could have been as high as $35,000 and $75,000 for KL 1658 and KL 1659 respectively plus outgoings and farm management obligations."
Counsel for the Williams family put to me that I should find there was no evidence of market leasing value, as Mr Rees was not qualified as an expert in valuation, and in any event was relying on hearsay in making these statements. While I agree with both aspects of the submission with respect to the evidence, I do not necessarily draw the conclusion contended for. However, as I indicate, the evidence is at best of limited persuasive value.
I begin by noting Mr Rees' substance of evidence (Exhibit 140) indicates he was an agricultural consultant in the area in which Kensey Park was located. As an agricultural consultant he prepared annual farm budgets and plans for local farmers, and advised farmers on such matters generally. The scope of his budgeting and planning advisory work included advising on farm leasing and farm leasing costs. He advised local farmers on terms and pricing for leasing local farms, whether as lessor or lessee. He had been in practice in these ways since 1986. He had received a Bachelor of Science (Agriculture) in 1972 and worked with the Department of Agriculture from 1972 to 1986, rising to the position of Officer in Charge of the Jerramungup branch of the Department. He had membership of two agriculturalist bodies. However, he did not indicate he had any formal qualifications or memberships as a valuer.
He indicated that his qualifications for making the statements as to leasing value were (examination‑in‑chief, t/s 1925):
"Could you?---My qualifications for making that statement is local experience really. I prepare annual farm budgets and plans for local farmers and each year I'm involved in preparing and advising on at least 40 to 50 annual farm plans and budgets and through that network of farming clients, I hear what's going on around the district with lease values and farm values and who's paying what."
I am of the view that the field of lease valuation is one of special knowledge or experience in which expert evidence may be called: Heydon, J D Cross on Evidence, 7th Australian ed Sydney LexisNexis Butterworths Australia, 2004, at [29050]. There was no evidence, as I have indicated, that Mr Rees trained or qualified as a valuer. I conclude, however, that it was established he had experience in relation to pricing farm leases, whether for a lessor or a lessee. I conclude that he thereby acquired expertise in lease valuation, both generally, and in relation to the area in which Kensey Park was located: see Cross on Evidence (supra) at [29060].
However, Mr Rees' opinion as to the leasehold value of Kent Location 1659 was based on facts "observed by the expert" and so "they must be identified and admissibly proved by the expert": Cross on Evidence (supra) at [29045]. There was no identification of particular transactions, let alone direct evidence of their terms: indeed, although Mr Rees' statement as to the "fair market annual lease rent" for Kent Location 1659 was "based on my personal knowledge of leases entered into over that period", the answer he gave to the question of counsel for the Graingers, as to the basis for his statement as to "lease values" (in Exhibit 142), would indicate to me his understanding of "personal knowledge" included transactions reported to him as well as ones in which he was personally involved. It is likely some of the reported transactions would have affected his opinion as to "fair market annual lease rent". Thus, the opinion of Mr Rees was inadmissible: Pownall & Ors v Conlan Management Pty Ltd & Anor (1995) 12 WAR 370 at 374 ‑ 375, per Ipp J, Malcolm CJ agreeing. The basis in transactions in which he was personally involved was not made apparent to me so as to permit me to admit the opinion subject to weight: see on that possibility, Ipp J at 377.
At the same time, however, no objection was taken at trial when this evidence was presented, although, of course, in closing argument it was submitted that the evidence should be rejected on the basis I have indicated. Compare Pownall (supra) at 385 per Ipp J. It might thus be arguable that Mr Rees' statement as to leasing value might be used as "proof to the extent of whatever rational persuasive value it may have": Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 219, per Samuels JA, quoted in Cross on Evidence (supra) at [1665].
However, even if the evidence were left in on that basis, I consider it to be of limited persuasive value without specification of the relevant comparable transactions. I consider that the leasing value opinion in Mr Rees' substance of expert evidence of greater persuasive value, as there is at least some reason to believe some of the transactions were ones in which he was personally involved, and whose comparability he would therefore more readily be able to evaluate.
Mr Rees' opinion as to "fair market annual lease rent" was expressed at a range, from "at least $55,000" to possibly "as high as $75,000", for Kent Location 1659 "plus outgoings and farm maintenance obligations". I note, however, the evidence as to annual leasing value at the relevant time represented by the actual annual lease rental, under the lease of Kent Location 1659 (Exhibit 28) to the Brown Trust entered into in May 1998, for $43,825 plus rates and taxes (cl 10), insurance (cl 11), the lessee's obligation "to keep clear and free from seedlings and undergrowth" all such parts of the land "as are or shall be ploughed or brought under cultivation", "to take all necessary steps to exterminate rabbits and other vermin", and "generally manage" the land, "to keep the same up to its present value" (cl 14), and to apply superphosphate for "top dressing" at 60 kilograms per "cleared and pastured acre" (cl 7). It was not made apparent to me why the "actual fair market annual lease rent" should be seen as 25 per cent greater for a lease entered into seven months or 19 months later, let alone 71 per cent greater (for the rent of $75,000). There was evidence that sheep prices had improved in May 2000 over the previous year; however, that evidence also was to the effect that sheep prices were better in 1998 than those in 1999, and that crop prices played at least as large a role in attracting potential lessees (cross‑examination of Geoffrey Grainger for the Williams family, t/s 1811). I had no evidence as to the pattern in crop prices. Also, the actual annual lease rental was under an arrangement conferring an option to purchase with the potential life of 21 months.
Accordingly, on the best evidence available to me, I conclude that for the purposes of the 1731 statute the rental component of the "yearly value" of Kent Location 1659 was the amount under the lease to the Brown Trust, or $43,825.
I have noted the reference to "outgoings and farm maintenance obligations" in the substance of the expert evidence of Mr Rees, and the items on those accounts in the lease of Kent Location 1659 to which I have referred. I consider these items should be included in the assessment of "yearly value" of Kent Location 1659, as "what an occupier would give, and landlord would otherwise have received, for the use of the freehold and everything connected with it during the time that possession is withheld" (Robinson (supra), at 675, per Pt B).
The 1731 Statute appears to me to be intended to provide for a penalty based on the use value of the premises, which would be what the user would expect to pay to or on behalf of the owner for the opportunity to enjoy the premises. This would be equivalent to mesne profits, which have been described as in substance damages for trespass (Wilson v Kelly [1957] VR 147 at 152, Gavan Duffy). I also note that a claim for mesne profits can include the value of covenants in a lease as well as its rental: see Bradbrook, AJ and Croft, C E Commercial Tenancy Law in Australia 2nd ed Sydney Butterworths, 1997 at par 17.17, referring to Woorarra Pastoral Co Pty Ltd v Cash, unreported; SCt of Vic (Adams J); 25 June 1971.
The plaintiffs claim, as I have indicated, as components of yearly value three items other than rental value. Those other components are rates, insurance premiums and superphosphate costs.
The proof of the first two of these items appears to be a Shire Rate Notice for 1 July 1998 to 30 June 1999 for Kensey Park, and a quotation dated 14 January 1999 for insurance coverage for Kent Location 1659 in respect of farm legal liability and farm property damage, from Farmers' Federation Insurance. Some handwritten annotations appear on that quotation. The notice and the quotation appear as Annexure GG8 to the affidavit of Geoffrey Grainger, dated 22 April 1999, incorporated into his witness statement of July 2004 (Exhibit 129), as I have indicated.
However, the rate notice does not break down the rate total of $3,681.04 between the two properties making up Kensey Park, Kent Location 1658 and Kent Location 1659. The claim is for $1,764.88, which added to the (damages) claim for Kent Location 1658 in respect of rates ($1,916.16, reached below) gives the rates total. It is not clear on what basis this differentiation is made. Kent Location 1658 was the smaller of the two properties: 1,598 hectares (see Exhibit 82), compared with Kent Location 1659 which is 1,784 hectares (see Exhibit 83). Kent Location 1658 was also considered by the Graingers to be the less valuable of the two properties (cross‑examination of Geoffrey Grainger for Wesfarmers Dalgety Real Estate, t/s 1970), as was borne out by the pricing of Kent Location 1658 in the transactions with the Williams family: its price under the contract of sale to the Malley Trust was $320,000 (Exhibit 29), which was also its option price for the Brown Trust in the lease of that property (Exhibit 27), while the option price for Kent Location 1659 in the Brown Trust's lease of that property (Exhibit 28) was $680,000. Doing the best I can, I consider, however, that the sum claimed has been established.
As to insurance, the quotation gives a total of $529 per annum, compared with the claimed $807 per annum. The handwritten annotations to the quotation refer to "two farm houses $266" and what appears to be "and $182", followed by what appears to be a total of "$807". However, I have no evidence as to who made the annotations, nor how the total of $807 is derived, as it is not the sum of the figures preceding it ($977 is that total). Thus, I do not consider that a per annum insurance cost of more than $529 has been established.
The proof of superphosphate cost appears to be Geoffrey Grainger's statement as to costs in par 26 of his 22 April 1999 affidavit incorporated by reference in his witness statement (Exhibit 129) as follows:
"The cost of 'Plain Super' for pasture is now $215 per tonne including freight at $18 per tonne so that the cost of the super at the rate of 60 kg per hectare will be $12.90. The cost of spreading is $1.50 per hectare giving an overall cost of purchase and spreading the super of $14.40 per hectare."
There was material in support of that claim attached to Geoffrey Grainger's witness statement of July 2004 (Exhibit 129), consisting of a copy of a CSBP fertiliser price list effective 15 September 1998, and showing superphosphate costs at Albany of $199 per tonne. This equates to $11.94 per hectare for 60 kg, which was the lease rate. This attachment, however, indicates the material but not delivery and application costs; and the attachment shows the possibility of variations in costs during the season by as much as $10 per tonne down and $4 per tonne up. No issue was taken with the $14.40 per hectare figure, from which the following appears and which the attachment in my view sufficiently supports.
I should note that the claim for "yearly value" made up as I have indicated is until the holding over ends or possession is regained. It would seem that the amount is to be calculated until that time, even if the holding over ends or possession is regained after the issuance of a writ: see Southport Tramways Co v Gandy [1897] 2 QB 66 (on the action for mesne profits), applied in Wilson v Kelly (supra), at 152, Gavan Duffy J. I do not have any evidence to indicate what change there was (if any) in ordinary leasing values and the cost items incurred over the period, and indeed the claim made uses the bases I have already discussed. In these circumstances, I would assess the yearly value until 28 February 2000 as if no change occurred over that period.
However, I need to repeat that I had previously concluded the claim for double yearly value was not open in this case. Had it been open, the claim made up as above, from 18 December 1998 to 28 February 2000, would have, as I have indicated been open. However, in my view, the Graingers would have had to have given credit for payments made and accepted, of amounts as "rent", of rates, and of insurance, up to the amount of the component represented by each of the last two. The amount so credited would only be up to the amount of the component, as the tenants should not have the benefit of any over‑expenditure. There would be no allocation for superphosphate, as on the evidence no crop was put in by the Williams family after the determination of the lease, and therefore no superphosphate was applied by them. There is evidence that rent was paid and, as I have indicated, accepted until 28 February 2000. There is also evidence rates were paid (Exhibits 44 and 45), as were amounts in respect of insurance (Exhibits 44 and 45).
The amounts of the credit are not clearly evident on the evidence before me, however, and should be determined by agreement between the parties, or by enquiry, if necessary. As I will indicate below, this is necessary even though, on my view, the claim for double yearly value is incompetent. This is because of the claim for mesne profits, and damages for trespass.
This brings me to the next head of claim.

Damages for trespass to Kensey Park from 19 December 1998 until possession of the property was delivered up

This claim is in respect of both Kent Location 1658 and Kent Location 1659. It is in the alternative to the previous claim so far as Kent Location 1659 is concerned. It is against all three defendants - Ruth Williams, her husband Gale, and their son Mark. Mark was permitted by Ruth and Gale to conduct farming operations on Kensey Park throughout the relevant period.

Damages for trespass to land are available in the case of an over holding tenant, that is, a tenant holding after the determination of the lease and against the will of the landlord (Bradbrook and Croft: Commercial Tenancy Law in Australia (supra), at pars 2.6 and 17.17). The damages will run from the time the tenant became a trespasser to the time the trespass ceased, and may be, in the particular case, the equivalent of a claim to mesne profits (Wilson v Kelly [1957] VR 147; Fleming (supra) at 53). Damages for trespass appear to be available even though at the time proceedings were initiated the Graingers were not in actual possession, because these proceedings included an action for possession: see Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1, Taylor J; Clifton Securities Ltd v Huntley [1948] 2 All ER 283. The service of the writ containing a claim constitutes a deemed re‑entry on the land, and has the effect that the Graingers' possession relates back to the date at which they acquired the right to immediate possession, namely, the termination of the leases on 18 December 1998 by effluxion of time: Furber, J ed, Hill and Redman's Law of Landlord and Tenant, London: LexisNexis UK, 2004, at [9702]; Fleming, J G The Law of Torts 9th ed Sydney, LBC Information Services 1998, at 53; and Halsbury's Laws of Australia, vol 26, at 415 ‑ 510, and cases there cited. The service of the writ, as I understand the authorities, made the tenants, the Brown Trust and Gale Williams, trespassers from the time of determination of the lease.
The determination of the leases would also seem to determine the licences from the tenants to Mark Williams, and to make him a trespasser by relation back as a result of service of the writ claiming possession from him: see Fleming: The Law of Torts, (supra), at 48.
Damages for trespass appear to comprise the loss of use value of the land plus consequential damages: Fleming, (supra), at 53 ‑ 54. The loss of use value appears to be equivalent, at least substantially, to mesne profits (see Wilson v Kelly (supra), at 52, Gavan Duffy J). On that basis, it would appear that the loss of use value after the issue of the writ can be claimed as part of the present proceedings: Southport Tramways (supra), on the action for mesne profits, applied in Wilson (supra), at 152, Gavan Duffy J. I deal with the claim for mesne profits next.
There remains the question of consequential loss from the trespass. There appears to be no claim for any such consequential loss. This is with the possible exception, separately claimed for, of damages for failure to remove a caveat, which I reach under that heading.

Mesne profits from 19 December 1998 until possession is delivered up

I have already made reference to the character of this claim as in substance one for damages for trespass. It is made against Ruth, Gale and Mark Williams, in respect of both Kent Location 1658 and Kent Location 1659. The quantum of the mesne profits is, it seems to me, in this case equivalent to the yearly value of the two properties, based on their ordinary lease value, but including also the items for rates, insurance and superphosphate. I have already made reference to this yearly value in relation to the claim for double value for Kent Location 1659 above. For the equivalence referred to, see Cooke, E "Trespass, Mesne Profits and Restitution", (1994) 110 LQR 420. I note, however, no claim for insurance is made in respect of Kent Location 1658. The claim for rates in respect of Kent Location 1658 is one to which I have already referred: the supporting evidence to which I referred in that context, going as it does to both properties, does not give rise in the present context to the difficulty to which I referred in the previous context.
The cost of superphosphate is, as I referred to it, in the context of the double value claim. However, here it is applied to the total cleared and pastured area of Kensey Park, not just Kent Location 1659. I indicated in the previous context the total cleared and pastured area of Kent Location 1659. The evidence of Geoffrey Grainger as to the corresponding area for Kent Location 1658 was "about 745" hectares (his 22 April 1999 affidavit, at par 8, incorporated by reference in his witness statement, Exhibit 129), which drew on an estimate by Geo Task to which I previously referred. The Geo Task estimate was 720.920 hectares. There was a later estimate by Mr Tasker of Geo Task in his opinion, to which I referred in the previous context (Exhibit 86), as to the "cleared" land for Kent Location 1658, of 730 hectares. For the same reasons as those I gave in the previous context, I consider the 730 hectare estimate as the best evidence of the cleared and pastured area of Kent Location 1658.
So far as the leasing value of Kent Location 1658 and Kent Location 1659 is concerned, for the reasons given in the previous context, I consider that such value should be assessed at the total of the rentals under the two leasing agreements, $24,000 per annum for Kent Location 1658 (Exhibit 27) and $43,825 per annum for Kent Location 1659 (Exhibit 28).
Of course, there should be credited against the assessment of mesne profits so described rental, rates and insurance as I indicated for the double value claim.

Damages for failure to remove caveats registered over titles to Kensey Park

This is a claim against Ruth Williams only, as the caveator in respect of the caveats G845128 and G845129, over the certificates of title for Kent Location 1658 and Kent Location 1659, respectively. These caveats claim an estate or interest in the lands as leasehold and as the subjects of options to purchase. Both bases for these caveats ceased on the determination of the leases on 18 December 1998. The Graingers, through their solicitors, by letter dated 3 December 1998 (Exhibit 148) demanded the caveats be withdrawn, but they were not. Applications to remove the caveats under Transfer of Land Act 1893 (WA), s 138B were made, following which the caveats were removed.
There is a statutory basis for a claim for damages for lodging a caveat without reasonable cause in Transfer of Land Act 1893, s 140. However, here the caveats when lodged were in respect of leases with options to purchase then on foot. There is no suggestion in the evidence before me that at the time they were lodged the purpose for lodgement was other than protecting the caveatable interest referred to: see Halsbury's Laws of Australia, vol 26, at [355‑8325].
The claim in these proceedings appears to be based on the equivalence, to an unreasonable lodgement, of the maintenance of a caveat after demand for its removal based on the disappearance of its basis. There appears to me to be no statutory claim to compensation in such a case: compare Real Property Act 1900 (NSW), s 74D(1)(c). I have not been able to find any authority on Transfer of Land Act s 140, or any other provision in the Act recognising such a claim. Indeed, there is authority doubting the application of s 140 to such a claim: Hooke v Holland [1984] WAR 16, Brinsden J, at 20; His Grace Metropolitan Petar v Macedonian United Society of Western Australia [2003] WASC 15, Barker J, at [34]; see also Edmonds v Donovan [2005] VSCA 27 at [98], per Phillips JA, Winneke P and Charles JA agreeing (leaving matter open, on Transfer of Land Act 1958 (Vic), s 118); and Halsbury's Laws of Australia at [355 – 8325]. If there is no right to compensation under s 140, it seems to me that the cost of removing a previously lodged caveat could only rest on one or other of two bases. One would be an implied term in the agreements to lease. The other is a claim forming part of the damages in trespass.
There is no implied term that is pleaded in this regard, and it is not altogether evident to me what the content of the term would be.
The other basis for the claim for the cost of removal of the caveats might be put in terms of consequential loss for the trespass represented by remaining in possession in the circumstance of this case. I have already referred to the possibility of the consequential loss claim in relation to the action for mesne profits and damages for trespass, above. However, the claim would not appear to be for damage to the land consequent on the trespass. Nor is there any claim that any use of the land was impaired by the failure to remove the caveats. I therefore do not see how the cost for the removal of the caveats could be treated as consequential loss in trespass.
Accordingly, I conclude that the claim for damages for the cost of removing the caveats cannot be sustained. This result appears to me to be one which has little to commend it. I have already noted the provision for cases such as this one in New South Wales. I consider there is a strong case to consider such a provision for this State.
Were there to be a claim of the sort allowed for in New South Wales, it appears to me that there would be a strong basis for it in this case. As I indicate in my judgment in CIV 2156 at 2000, a facsimile letter of 17 December 1998 had been sent to Gale Williams (Exhibit 53) confirming a telephone conversation with him. The facsimile letter referred to the lease for Kent Location 1659 as "due to terminate on 18 December 1998", and the lease for Kent Location 1658 is described as expiring "on the same day". While no mention is made in that letter of caveats in respect of the leases, if Gale Williams or Ruth Williams was aware of the caveats, then he or she would have had reason to enquire whether the caveatable interests underlying the caveats had lapsed, and the failure to enquire would deprive Ruth Williams of "reasonable cause": John Street Marina Pty Ltd v Minister for Transport [2005] WASC 171, Jenkins J. If Ruth Williams or Gale Williams was not aware of the caveats, then it seems to me the matter of the caveator's "reasonable cause" could only be tested by reference to the honest belief and its grounds of her agent for the purpose, her solicitors: see McKellar & Anor v Singh [1999] WASC 145, Heenan J, at [7]. In that regard, I note both the facsimile letter of 17 December 1998, and the facsimile letter to Ruth Williams from her solicitors dated 29 January 1999 (Exhibit 54). In that facsimile letter the author confirms the advice in the facsimile letter of 17 December 1998, referred to, and indicates that, as both leases had expired or terminated, "accordingly, in the case of both properties the interest sought to be protected by the caveats has now ceased to exist".
Accordingly, I would have concluded that, applying a provision like the New South Wales one, there would have been damages, in the amount of the cost of removal of the caveats, available to the plaintiffs. However, there does not seem to me to be such a statutory claim in this State.

Damages for breach as of the leases and damage to the reversion

This is a claim against the first and second defendants, Gale and Ruth Williams. It is for damages for breaches of the pleaded implied terms and covenants in the leases of Kent Location 1658 and Kent Location 1659.
The implied terms were that the first and second defendants "would during the continuance of Leases use and manage the land in a proper and husbandlike manner and not impoverish or waste the same". It is an implied term of every lease, unless it is inconsistent with the lease's express terms, that the lessee will "use the premises in a tenantlike manner and he must deliver up the premises in the same condition as he received them reasonable wear and tear excepted": Combara Nominees Pty Ltd v McIlwraith‑Davey Pty Ltd (1991) 6 WAR 408, per Pidgeon J at 412, Rowland and Nicholson JJ not finding it necessary to express a final view; Bradbrook and Croft: Commercial Tenancy Law in Australia (supra) at [8.6]. This is sometimes expressed as entailing a "continuing obligation to repair acts which would amount to voluntary waste and which involve a breach of the obligation to use the premises in a husbandlike manner": Marsden v Edward Heyes Ltd [1927] 2 KB 1, per Atkin LJ, quoted with approval in Combara Nominees, (supra) per Pidgeon J at 412.
The pleaded covenants in the lease were two, and both were admitted by the defendants. One was to "generally manage the land and premises the subject of the Leases so as to keep the same up to their value as at the commencement of the lease" (cl 14 of each of the Leases, Exhibits 27 and 28), and "apply superphosphate on the Land at the rate per hectare per annum of 60 kgs per cleared and pastured hectare for top dressing" (cl 8 of each of the Leases). The first covenant, it seems to me, covers all of the ground of the pleaded implied term, and renders resort to it unnecessary.
The pleaded breach of the implied terms and of the first pleaded covenant was that the first and second defendants allowed the weed burden on Kensey Park "to become rank such that the value and viability of the property for future cropping would be diminished if the default was not remedied". The loss and damage pleaded was from the cost incurred by the plaintiffs to implement a spray programme to control the weed burden on such at Kensey Park as the defendants allowed to be sprayed, and the amount by which the reversion was diminished in respect to the remaining part of Kensey Park, to which the defendants refused access.
There was evidence from Mr Gale Williams that the Williams family had not "spray topped" or did not "spray freeze" the weeds on Kensey Park (cross‑examination for the Graingers, t/s 1032). There was also evidence from Mr Geoffrey Grainger (witness statement, Exhibit 129, Pt 2, incorporating by reference his affidavit of 22 April 1999, including pars 40 and 41) that he and his wife had formed the view that the weed burden had become such that the value and viability of the property for future cropping would be diminished if the default were not remedied, and had caused a notice of breaches of the lease to be sent to the solicitor for the Williams family. While the view referred to appears to me to be in the nature of opinion evidence, as to the need for addressing the weed burden in the terms described, there is in my view an arguable basis for its reception in the experience of Geoffrey Grainger as a farmer of Kensey Park. There is also some evidence, which I reach next, that he had sought other advice (from Mr Rees, to whom I have previously referred) to confirm this view.
However, Mr Gale Williams's evidence was also that the Williams family "stopped [weeds] with livestock", which was "my method of farming", as "I'm not a chemical man" (cross‑examination for the Graingers, t/s 1030). Further, in his cross‑examination for the Williams family, Mr Geoffrey Grainger said that at the time of the first inspection of Kent Location 1658 by Mr Gale Williams, which ultimately led to the leasing of Kensey Park, when asked about the weed condition of the property said:
"If you call capeweed and rye grass weeds there would have been weeds on it." (t/s 1881)
This cover appears in his view to have represented good feed for sheep (t/s 1881). There was thus evidence that weeds on the property were capable of being addressed by grazing by livestock.
The issue then becomes whether the Graingers have shown a breach of the covenant to manage. There is evidence that the Graingers concluded that their spraying programme was necessary to ensure the land to be sprayed could be used for cropping in the following year, and that there was no alternative to spray topping, confirmed by expert advice they had received. That advice was from Mr David Rees, to whom I have previously referred, in a letter to Mr Geoffrey Grainger dated 9 October 1998, in which Mr Rees expresses his opinion based on his inspection of Kensey Park (affidavit of 22 April 1999, par 43 and Annexure GG9, incorporated by reference in Mr Grainger's witness statement, Exhibit 129). I note that Annexure GG9 also became Exhibit 141.
It appears to me that Mr Rees had the expertise (as I have previously discussed) to provide an opinion on the necessity described. However, it does not appear to me that his letter is a matter I can treat as expert evidence in the form of a report or substance of expert evidence for the purpose of these proceedings. It was not clearly prepared for the purpose of these proceedings, nor is there in respect of it a statement in writing (or otherwise) to the effect that Mr Rees had made all enquiries he believed desirable and appropriate and that no matters of significance which the witness regarded as significant had to his knowledge been withheld from the court, as required by the trial directions for this trial. I can, however, regard Mr Rees' statement, in my view, as a matter which Mr Grainger treated as confirming him in the opinion he formed. This opinion was as to the necessity for a spray programme, to which I have previously referred.
However, I am unable, in my view, to use Mr Rees' opinion as a sufficient basis for preferring Mr Grainger's view to that of Mr Williams, without further evidence as to the basis for Mr Rees' opinion as to why, as he put it (in Annexure GG9, Exhibit 141), "hard grazing would be impossible at this stage". In that position, while I am prepared to conclude there was a weed problem on Kensey Park that required attention, I am unable to conclude that a spray programme was necessary to discharging the obligation in respect of that problem, the obligation represented by the express management covenant.
I turn then to the pleaded breach of the covenant to apply superphosphate. This was that the first and second defendants failed to apply superphosphate at the covenanted rate of 60 kgs per cleared and pastured hectare, other than the area in fact cropped by the defendants. The defendants had indeed put in a crop on Kensey Park during the term of the leases, as I explained in my judgment in CIV 2156 of 2000. The loss or damage pleaded was the amount by which the value of the reversion had been diminished by such failure, being an amount:
"Equal to or in excess of the cost of $11,904 for purchase, delivery and application of superphosphate for the periods in the leases at the contract rate per annum to 243 hectares on Kent Location 1658 and 1355 hectares on Kent Location 1659 on cleared and pastured land other than area cropped by the defendants."
This cost is evidently set for the season the subject of leases, and for a portion of each of Kent Location 1658 and Kent Location 1659. This emerges when this claim is compared with those for double yearly value for Kent Location 1659 and for mesne profits and damages for trespass in respect of Kent Location 1658 and Kent Location 1659 (above).
As to the cleared and pastured area of Kensey Park not cropped by the Williams family in 1998, there is the evidence of Mr Gale Williams, as well as that of Mr Geoffrey Grainger.
Mr Williams, in cross‑examination for the Graingers, testified as to the paddocks cropped in Kent Location 1658 and Kent Location 1659 (t/s 562, 563). He testified in later cross‑examination for the Graingers that the Williams family had not fertilised any parts of Kensey Park they had not cropped (t/s 1032).
For Kent Location 1658, taking the corresponding numbers from the table of "Cleared area estimates" from the evidence of Mr Tasker (substance of expert evidence, Exhibit 86) would yield a total of 504 hectares for the paddocks Mr Williams identified as definitely fertilised and cropped, plus the paddock for which Mr Williams indicated he was uncertain (Paddock No 20, on Kent Location 1658. The uncertainty derived from the fact that Mr Williams had not himself done the fertilising and cropping). The use of Mr Tasker's figures to determine cleared and pastured hectares for Kent Location 1658, and, as I will indicate below, for Kent Location 1659, is appropriate for the reason indicated earlier in this decision.

For Kent Location 1659, the number for the paddocks to which Mr Williams referred in his evidence (t/s 563) is more difficult to derive. It appears to have been 22 hectares, which Mr Williams referred to as "60 acres or something" by reference to a "house paddock". The 22 hectares is for what appears to have been an unnumbered paddock. The acreage equivalent (at 2.47 acres per hectare) is actually 54 acres.
This produces an overall total of cleared and pastured hectares for the two properties (using Mr Tasker's figures, as I have explained) of 526 hectares. That total and its components, read with Mr Tasker's other figures for the paddocks in Kensey Park that were "cleared", can in my view be used to evaluate Mr Geoffrey Grainger's evidence (in his affidavit of 22 April 1999), as incorporated by reference in his witness statement, Exhibit 129, at par 46.3 of the affidavit) as to the area to which the first and second defendants failed to apply superphosphate at the contract rate. That evidence of Mr Grainger was, for Kent Location 1658, 243 hectares and, for Kent Location 1659, 1355 hectares.
Mr Tasker's total cleared hectares for Kent Location 1658, apart from paddocks fertilised and cropped by the Williams family, was 226 hectares, which can be compared with Mr Grainger's 243 hectares. Mr Tasker's total cleared hectares for Kent Location 1659, apart from the paddocks fertilised and cropped by the Williams family, was 1,359 hectares, which can be compared with Mr Grainger's 1,355 hectares. It seems to me the difference for Kent Location 1658 could be accounted for by reference to the paddock with respect to which Mr Williams was uncertain.
Accordingly, I would conclude that I should find the number of hectares testified to by Mr Grainger, as claimed in the statement of claim, is the figure to which to apply the contract rate of 60 kilograms per hectare.
I have already indicated that the cost associated with the contract rate of $14.40, the subject of Mr Grainger's evidence, is the appropriate figure to use for that cost. The defendants, however, challenge the use of the products so produced as a measure of the damages for breach of the covenant. That damage is expressed as the amount by which the reversions of Kent Location 1658 and Kent Location 1659 were diminished by the failure to apply the superphosphate as covenanted.
However, there is authority that, for breach of a covenant to repair, the lessor may prima facie recover the cost of doing the necessary repair, "which is regarded prima facie as representing a diminution in the value of the reversion due to the breach" (Halsbury's Laws of Australia, at [245‑4375]; Joyner v Weeks [1891] 2 QB 31, at 43). This authority, in my view, is readily applied in the present context.
Accordingly, I would regard the pleaded claim, in respect to the superphosphate application covenant, to have been made out.

Interest

The claim is for interest under s 32 of the Supreme Court Act 1935 (WA) on all amounts the defendants owe up to the date of judgment. There was no submission made against an award of interest in this case, and no reason not to award interest presents itself to me.
I consider it would be appropriate to award interest in this case as claimed, from the time the relevant causes of action arose to the date of judgment. The dates for the causes of action are as follows:
•for the claim for mesne profits, when the respective components of yearly value as I have described them ought to have been paid, which would in my view follow from the leases of Kent Location 1658 and Kent Locations (Exhibits 27 and 28), had they continued until the Williams family vacated Kensey Park; and
•for the claim for failure to apply superphosphate in breach of the express terms of the two leases, the last date for that application.
The component for rent in respect of the claim for mesne profits would arise at the monthly dates in the leases. However, I was not directed to evidence that establishes the other dates, and therefore I cannot supply further detail on them.
The rate of interest, in the absence of any other basis apparent to me in the evidence, in my view should be that which would apply to the sums as if they were judgment debts, at the rates applicable to judgment debts. Those rates are the one which were those gazetted for the purposes of former s 142 of the Supreme Court Act, and are now, effective 1 May 2005, the ones prescribed by regulation under s 8(1)(a) of the Civil Judgments Enforcement Act 2004 (WA).

Further and other relief

There were no submissions put to me for such relief and the case for any such relief is not apparent to me.

Order

I will hear from the parties as to the orders that should be made to give effect to these reasons.