Halfpenny & Halfpenny v Minnikin - [1993] QCA 483

IN THE COURT OF APPEAL

[1993] QCA 483

SUPREME COURT OF QUEENSLAND

Appeal No. 52 of 1993

Brisbane

Before

The President
Mr Justice Davies
Mr Justice Moynihan SJA

[Re: Halfpenny v. The Public Trustee of Qld.]

BETWEEN:

EARNEST GEORGE HALFPENNY and
JACQUELINE HALFPENNY

(Plaintiffs) Appellants

AND:

JEAN MURIEL MINNIKIN

(First Defendant)

AND:

THE PUBLIC TRUSTEE OF QUEENSLAND

(Second Defendant) Respondent

JUDGMENT OF THE COURT

Judgment delivered the Third day of December 1993

This is an appeal by the plaintiffs in an action in the
District Court at Rockhampton seeking to increase the amount
of damages which they were awarded. Judgment was given for
the appellants for the sum of $16,502.00 together with
interest of $4,792.00 and costs to be taxed. The
respondent, the second defendant in the Court below, is the

executor of the first defendant whose death occurred

subsequently to the events of principal significance.

On 1 March 1984, the appellants and the first defendant entered into a written agreement with respect to an 11.898 ha. rural residential block which the first defendant owned in the Cooberie area northwest of Yeppoon. The agreement was as follows:

"AGREEMENT FOR SHAREFARMING MADE THIS FIRST DAY OF MARCH 1984 BETWEEN MRS. J.M. MINNIKIN OF "NOVAR", YEPPOON AND MR & MRS. E.G. HALFPENNY OF 23 McBEAN STREET, YEPPOON, IN THE STATE OF QUEENSLAND.
NOW THIS AGREEMENT WITNESSES AS FOLLOWS:-
(1) MRS. MINNIKIN SHALL AGREE TO ALLOW MR. & MRS.
HALFPENNY TO SHAREFARM ON HER PROPERTY.

(2) THE GROSS SALES FROM PRODUCTS AND FRUITS PRODUCED ON THE PROPERTY SHALL BE DIVIDED 2/3 TO MR. & MRS HALFPENNY, 1/3 TO MRS. MINNIKIN.
(3) MR. & MRS. HALFPENNY WILL PAY ALL OPERATING
EXPENSES FOR THE FARM.

(4) MRS. MINNIKIN WILL PROVIDE AS REQUIRED A SHED, TREES, BORE, WATER MAIN AND FITTINGS, EQUIPMENT FOR BORE AND FREE DWELLING FOR WHICH MR. & MRS. HALFPENNY WILL BE RESPONSIBLE FOR ELECTRICITY AND TELEPHONE.
(5) MR. & MRS. HALFPENNY WILL PROVIDE THE FOLLOWING
MACHINERY:-
TRACTOR, SLASHER, SPRAY EQUIPMENT, DISC AND OFFSET
PLOUGHS, FRUIT GRADING MACHINE, TRAILERS AND
PACKING & HANDLING EQUIPMENT, TOGETHER WITH TREE
PROTECTIVE MATERIAL.

(6) MR. HALFPENNY WILL BE ABLE TO WORK AWAY UNTIL
ORCHARD IS IN FULL PRODUCTION.

(7) NO SATURDAY WORK WILL BE CARRIED OUT ON PROPERTY.
(8) IN THE EVENT OF MRS. MINNIKIN SELLING THE PROPERTY, SHE WILL ENDEAVOUR TO PROTECT THE INTEREST OF MR. & MRS. HALFPENNY AND ENABLE THEM TO CARRY ON THEIR FARMING ACTIVITY.
(9) PRODUCTS WILL BE SOLD IN THE NAME OF MR. & MRS. HALFPENNY HOWEVER, ALL INVOICES AND STATEMENTS WILL BE MADE AVAILABLE TO MRS. MINNIKIN.
(10) MRS. MINNIKIN HAS THE RIGHT TO GRAZE LIVESTOCK WHERE IT WILL BE NECESSARY TO MAINTAIN GRASS GROWTH.
IN WITNESS WHEREOF THE PARTIES HERETO HAVE HEREUNTO SET OUT THEIR HANDS ON THE DAY AND YEAR FIRST HEREINBEFORE WRITTEN.
... . "
In mid-January, 1988, the first defendant gave the

appellants notice of termination of the agreement and the appellants vacated the property in February 1988. In this Court, it was not argued by…

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 Halfpenny & Halfpenny v Minnikin

Details

AGLC: Halfpenny and Halfpenny v Minnikin [1993] QCA 483
Case: [1993] QCA 483
Decision Date: 3/12/1993

CaseChat Overview and Summary

This appeal concerns an action in the District Court at Rockhampton, where the plaintiffs, Earnest George Halfpenny and Jacqueline Halfpenny, sought to increase the amount of damages awarded to them. The trial court had granted the plaintiffs a sum of $16,502.00, together with interest of $4,792.00 and costs to be taxed. The appeal was against the second defendant, the respondent in this Court, who is the executor of the first defendant who passed away subsequent to the events of principal significance. The plaintiffs and the first defendant had entered into a written agreement regarding an 11.898 ha. rural residential block in the Cooberie area northwest of Yeppoon. The first defendant gave notice of termination of the agreement in mid-January 1988, and the plaintiffs vacated the property in February 1988. The respondents did not contest that the first defendant had repudiated the agreement and that the appellants were entitled to damages. The Court was required to decide the legal issues concerning the calculation of damages, specifically whether the damages should be calculated based on the benefits the appellants would have enjoyed if the agreement had continued until February 1992 or until February 1998. The Court also had to determine the proper construction of the agreement, specifically whether the agreement could be terminated by notice and, if so, what would constitute a reasonable period for termination by notice. The Court found that the agreement was determinable after a reasonable period by reasonable notice, as the trial judge had held. The Court concluded that a reasonable period would not have elapsed until February 1996, by which time the appellants would have put in 12 years of effort and financial contributions and the orchard would have been profitable for a 5-year period. The appeal was allowed, the judgment below was set aside, and judgment was given for the appellants for damages to be assessed by the Court or, if the Court so decided, by the District Court. The respondent must pay the appellants' taxed costs of and incidental to the appeal.

Orders