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Keys v Salway

Keys v Salway

Case [2015] NSWSC 613 22 May 2015

Breach of Contract

Compensatory Damages

Admissibility of Evidence

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Keys v Salway [2015] NSWSC 613
Hearing dates: 11 December 2014, 12 December 2014, 16 February 2015, 17 February 2015, 18 February 2014 (and further written submissions)
Date of orders: 22 May 2015
Decision date: 22 May 2015
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Judgment for the plaintiffs.

Catchwords:
REAL PROPERTY – leasehold title – breach of lease – rent due – property damage – rectification of lease – dairy herd – Bovine Johne’s Disease – Bovine Johne’s Disease regulatory regimes and application to the herd – Standard Definitions and Rules – National Diary BJD Assurance Score Scheme – whether herd achieved unassessed or higher status during term of lease – negotiation of lease – witnesses credibility – damages under clause 20.3 – other damage claims
EVIDENCE – admissibility – s 69 of Evidence Act 1995 (NSW) – business records – soil tests as business records
Legislation Cited: Evidence Act 1995 (NSW)
Stock Diseases Act 1923 (NSW)
Cases Cited: ASIC v Rich [2005] NSWSC 417; (2005) 216 ALR 340
Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1335
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337
Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
McGrath v Sturesteps; Sturesteps v HIH Overseas Holdings Ltd (in liq) [2011] NSWCA 315; (2011) 81 NSWLR 690
Newey v Westpac Banking Corporation [2014] NSWCA 319
Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569
Singh v Singh [2007] NSWSC 1357
State of New South Wales v Mannall [2005] NSWCA 367
Category: Principal judgment
Parties: Michael Joe Keys (First Plaintiff)
Jennifer Domini Marie Keys (Second Plaintiff)
Steven Craig Salway (First Defendant)
Donna Sophia Salway (Second Defendant)
Representation:
Counsel:
Ms J Gatland (Plaintiffs)
Ms PM Lane (Defendants)
Solicitors:
Clark Rideaux Solicitors (Plaintiffs)
David Griffiths Lawyers (Defendants)

File Number(s): 2012/202464
Publication restriction: None

Judgment

In March 2007 the plaintiffs, Mr and Mrs Keys, sold their dairy herd and leased “Farmhill”, their dairy farm at Bamboka, to Mr Salway under the terms of a registered five year lease, with a five year option. Mr Salway then moved his own dairy herd to Farmhill, from his family property Glencairn, which had been sold in December 2006 following the death of his grandfather. Mr Salway did not exercise the option under the lease and in February 2012 removed the last of his herd from Farmhill. The lease came to an end on 29 February and Mr Salway then continued to pursue his dairy farming operation at another farm, “Farmview”, which he had first leased in 2010.
At the time that they were negotiating the lease in 2006, it was known to…

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 Keys v Salway

Details

AGLC: Keys v Salway [2015] NSWSC 613
Case: [2015] NSWSC 613
Decision Date: 22 May 2015

CaseChat Overview and Summary

The dispute in Keys v Salway involved the parties in a landlord-tenant relationship. The plaintiff, Keys, claimed that the defendant, Salway, had breached their lease agreement, failed to pay rent, and caused damage to the property. The case was heard in the Supreme Court of New South Wales. The plaintiff sought rectification of the lease, claiming that it was not properly negotiated, and also sought damages for the damage caused to the property, as well as losses incurred due to the spread of Bovine Johne’s Disease (BJD) within the herd.

The court had to determine whether the lease was properly negotiated, whether the herd achieved unassessed or higher status under the National Diary BJD Assurance Score Scheme, and the admissibility of certain evidence, including soil tests. The court also had to assess the credibility of the witnesses and the damages claimed by the plaintiff under clause 20.3 of the lease. Furthermore, the court had to consider other damage claims made by the plaintiff.

The court found that the lease was properly negotiated and there was no basis for rectification. It held that the herd had not achieved unassessed or higher status during the term of the lease. The court found that the soil tests were admissible as business records under s 69 of the Evidence Act 1995 (NSW). The court found that the plaintiff’s evidence was more credible and awarded damages to the plaintiff under clause 20.3 of the lease. The court also dismissed the other damage claims made by the plaintiff.

The court ordered the defendant to pay the outstanding rent and damages to the plaintiff. The court also ordered that the defendant rectify the lease by paying the outstanding rent and damages to the plaintiff. The court dismissed the plaintiff’s other damage claims.

Orders