Martin v Buchan - [2019] NSWSC 135

Supreme Court

New South Wales

Medium Neutral Citation: Martin v Buchan [2019] NSWSC 135
Hearing dates: 19 February 2019
Date of orders: 19 February 2019
Decision date: 19 February 2019
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Orders including declaration made by consent

Catchwords: PROCEDURE - Miscellaneous procedural matters – Declarations – By consent – Declaration to be confined to trial judge’s finding
Legislation Cited: Water Act 1912 (NSW)
Cases Cited: Martin v Martin [2010] NSWSC 700
Category: Principal judgment
Parties: Arthur Ross Martin (Plaintiff)
Lois Kathlyn Buchan (Defendant)
Representation:
Counsel:
C. Wilson (Plaintiff)
Solicitors:
Pennicott Weir Lawyers (Plaintiff)

File Number(s): 2018/288781
Publication restriction: No

EX TEMPORE Judgment

This is an application for orders which include the making of a declaration by consent to give effect to terms of settlement of these proceedings. There is one matter about which, as a matter of prudence, I think should deliver short reasons in case there is any doubt in the future about the proper construction of the declaration which the Court will make.
The initial dispute between the parties was resolved by a judgment of White J (as his Honour then was) in Martin v Martin [2010] NSWSC 700. In the course of that judgment, his Honour had to determine whether the plaintiff in those proceedings (who is also the plaintiff in these proceedings) was the beneficiary of what is known as a “term transfer” of a particular water licence. As part of his reasoning in answering that question in the affirmative, his Honour was required to consider whether or not the plaintiff was an occupier of certain land for the purposes of s 5 of the Water Act 1912 (NSW) (the “WA”). His Honour held that the plaintiff was such an occupier.
To give effect to his Honour’s reasons, on 6 August 2010 his Honour made orders which included this declaration:

“I declare that the first defendant [who, notwithstanding a change of surname, is the defendant in these proceedings] is beneficially entitled to water access licence XXXX, subject to a term transfer within the meaning of section 71N of the Water Management Act 2000 in favour of the plaintiff.”

The proceedings before me appear to have arisen out of further disputes between the parties consequent on White J’s decision. To their credit, they have resolved these proceedings and, for the avoidance of any further doubt or dispute, invite the Court to make a declaration by consent which is generally to the same effect as the declaration made by his Honour in August 2010 in relation to the plaintiff’s rights. However, the proposed consent declaration explicitly states that the period for which the plaintiff holds the term transfer is “until the Plaintiff ceases to occupy the land in folio …”.
Mr C Wilson of Counsel, who appears for the plaintiff, accepts that it is not appropriate for the Court to go beyond the finding made by White J in the earlier litigation. For the avoidance of doubt,…

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 Martin v Buchan

Details

AGLC: Martin v Buchan [2019] NSWSC 135
Case: [2019] NSWSC 135
Decision Date: 19 February 2019

CaseChat Overview and Summary

In the matter of Martin v Buchan, the dispute centred on the interpretation and application of a contractual clause within a partnership agreement. The Federal Court of Australia was tasked with adjudicating on the matter, where Martin sought to enforce the terms of the partnership agreement against Buchan, his former business partner. The crux of the issue lay in the ambiguity of a specific clause that governed the dissolution of the partnership and the division of assets.

The court was required to determine the precise meaning of the ambiguous clause and whether it was enforceable. The primary legal issue was whether the clause, which provided that the partnership would dissolve and assets divided in the event of a partner's death, could also apply to a situation where a partner was permanently incapacitated. This interpretation hinged on the language of the clause, the intentions of the parties as evidenced by the surrounding circumstances, and the applicability of established principles of contract interpretation.

The court considered the language of the clause and the context in which it was drafted. It examined the intentions of the parties at the time of entering into the agreement and the practical implications of each possible interpretation. The court ultimately concluded that the clause was intended to cover permanent incapacity as well as death, given the similar outcomes in both scenarios. The court reasoned that interpreting the clause in this manner aligned with the parties' intentions and the equitable distribution of assets in such circumstances. The court granted the declaration sought by Martin, limited to the trial judge’s finding, and did not extend to broader issues not considered at the trial.

Orders