Park & Anor v Brothers

[2005] HCATrans 773

[2005] HCATrans 773

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S226 of 2005

B e t w e e n -

LINDSAY GORDON PARK

First Appellant

JILL PARK

Second Appellant

and

CLIVE ROY BROTHERS

Respondent

GLEESON CJ
GUMMOW J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 27 SEPTEMBER 2005, AT 10.17 AM

Copyright in the High Court of Australia

MR I.M. BARKER, QC:   If the Court pleases, I appear with MR D.H. MURR, SC for the appellant.  (instructed by Holman Webb)

MR T.E.F. HUGHES, QC:  May it please the Court, I appear with MR T.D.F. HUGHES for the respondent, who was the defendant below.  (instructed by Lumleys Solicitors)

GLEESON CJ:   Yes, Mr Barker.

MR HUGHES:   Before my learned friend starts, I have an application to make.

GLEESON CJ:   Is this the notice of contention?

MR HUGHES:   Yes.

GLEESON CJ:   Is that opposed, Mr Barker?

MR BARKER:   Yes, your Honour.

GLEESON CJ:   Yes, Mr Hughes.

MR HUGHES:   Your Honour, it is a precautionary notice of contention to raise a point that was distinctly flagged in paragraph (21) of our written submissions.

GLEESON CJ:   Is it convenient to both of you that we hear argument in relation to the matter, including your application, and deal with your application when we give our judgment?

MR HUGHES:   Yes, so far as we are concerned.

MR BARKER:Yes, your Honour.

GLEESON CJ:   All right, we will deal with the matter on that basis.  Yes, Mr Barker.

MR BARKER:   Your Honours, the grounds of appeal come down, we say, to four propositions.  Firstly, the approval issue was not litigated at the trial, nor even alluded to, impliedly or otherwise, in the points of defence or the evidence.  Secondly, the Court of Appeal was wrong in allowing the respondent to raise the approval issue on appeal for the first time.  Bound up with that proposition is the proposition that the appellant was denied the opportunity of amending the pleadings and leading evidence to show waiver or estoppel by conduct to preclude the respondent from succeeding in such a defence.  The first the appellant heard of the matter was in the Court of Appeal.  Thirdly, the proper conclusion on the evidence, we submit, was that from 12 December 2000 the appellants were effectively precluded from doing the work preparatory to sowing a rice crop in 2001, to be harvested in 2002, and from sowing a wheat crop to be harvested in 2001.

They were in fact precluded from seeking approval according to the terms of special condition 24.  It would have been a useless exercise, entirely without point because the respondent had by then repudiated the contract.  He did that on 12 December.  He ordered the appellant off the property on 19 December.  The vital months during which the work would have been done were lost to the appellant and this was found by Justice Campbell and by the Court of Appeal.

We say that the proper conclusion on the evidence was that had there not been a disagreement and had the respondent not repudiated the contract on 12 December and not denied access to the appellant from 19 December it is more probable than not that the respondent would have readily given his approval to the two locations which the appellant intended to landform in order to sow rice in the spring of 2001, namely, 600 hectares and 200 hectares.

Your Honours, as to proposition 1 that the approval issue was not litigated or alluded to, it is apparent, we submit, that the claim for loss of opportunity to grow the rice and wheat in 2001 and 2002 on the proposed 860 hectares of land was very much a live issue, appreciated as such by the respondent, and the respondent dealt with the issue in a number of ways, none of which included reference to the want of approval.  We have tried to identify the material relevant to this assertion in schedule 1 to the appellant’s submissions in reply.  Perhaps I could take your Honours to that evidence.

CALLINAN J:   Mr Barker, before you go on, I wonder if you can assist me.  What was the respondent’s interest under clause 24 of the contract?  What benefit, if any, could the respondent as vendor derive from clause 24 of the contract?

MR BARKER:   In this case, there is evidence that the agent told Mr Park that the respondent wanted the purchaser on the place immediately because he was ill.  He wanted someone on the place to look after it.

CALLINAN J:   That is really what I am asking you.  At the moment, it looks to me as if this is a clause, at least arguably, simply and solely for the benefit of your clients.  Now, that is why I asked you what interest, if any ‑ ‑ ‑

MR BARKER:   The other interest he had in it of course was that under the terms of sale, Mr Park had to pay $350,000 in 2002 and it was very much in Mr Brothers’ interests that he be allowed to be on the place to earn money.

CALLINAN J:   Why should not one regard the contract as containing the conventional implied term that each party would do everything reasonable to facilitate completion and performance of all of the terms and that this is a term which your client sought to perform?

MR BARKER:   It would ‑ ‑ ‑

CALLINAN J:   Why is that not the end of the case?

MR BARKER:   In our submission, it is the end of the case.  The principle that was enunciated in the St Martins Finance Case ‑ ‑ ‑

CALLINAN J:   St Martins Investment Trust?

MR BARKER:   Yes.

CALLINAN J:   But that was just a re-enunciation of many previous statements.

MR BARKER:   There can be no question, in my submission, that had there not been this falling out, there would have been approval ‑ ‑ ‑

CALLINAN J:   I cannot see what possible interest at the moment the vendors could have in excluding your clients from cropping the land.

MR BARKER:   None, we submit none.  If I can go, because of what your Honours said, to the second schedule and perhaps just a further question of the amendment to the case – go to the second schedule which is attached to our submissions in reply.  Those references show why we say it was probable that Mr Brothers would have approved the locations.  The contract is a material consideration, which I seem to have lost.  The contract is at appeal book 522, appeal book 1 and special condition 23 is at appeal book 539, line 10 and your Honours will see that the consideration of $3.350 million payable by a deposit of 250,000 - 250,000 on completion, 500,000 on 7 July 2001 and 350,000 on7 September 2002 and $2 million in 2005.  Now, the outstanding 2,850,000 is secured by mortgage.

Special condition 24 was, as your Honour Justice Callinan has pointed out, for the benefit of the purchaser except to the extent that it was in the vendor’s interest to have him earning money so he could discharge his obligation under the contract.

CALLINAN J:   And improving the property if there is any default.

MR BARKER:   Yes.

HAYNE J:   Was it not in the vendor’s interest to control where this was done?

MR BARKER:   No, because the vendor let him in before the contract was signed and he sowed rice on 511 hectares without the vendor’s express approval as to where this would be done.  As the Court of Appeal pointed out, there was a marked informality surrounding how this contract was played out.  At appeal book 541, I think special condition 28, the purchaser ‑ ‑ ‑

HAYNE J:   Just before you leave 24, what is the approval that is required?

MR BARKER:   The approval was for locations for the sowing of rice, for the work to be done and for the rice to be sown.

HAYNE J:   But confined to where it was to be done?

MR BARKER:   Yes, locations first approved by the vendor.  His Honour Justice Giles in the Court of Appeal and the other judges observed about that clause – wrongly, we say – that it enabled the purchaser to go onto the place and occupy the cottage even if he could not grow rice and work the land, but that is not so.  It is clear from the wording of it that occupying the manager’s cottage was for the purpose of working the land for the growing of rice.  At appeal book 541, line 5 the contract made the purchaser responsible for the day‑to‑day management of sheep.  He obviously could not do that unless he was on the place.  There were 12,700 sheep, which you will find in the contract at appeal book 545.  Special condition 29 we say obviously suggests that the parties had in contemplation that the purchaser would go into occupation and grow rice for the 2001/2002 season, because it requires that :

the Purchaser will give the Vendor an irrevocable Rice Crop Voucher –

which I take to be a sort of lien –

for $350,000.00 over the Purchaser’s 2001/2002 rice crop grown on the property –

So it is as clear as burning daylight, we say, that both parties intended that Mr Park would go onto the place and work the land and grow rice with a view to harvesting it in the autumn of 2002.

GLEESON CJ:   If this matter had been agitated at trial, perhaps somebody might have though to ask the vendor whether, apart from the contractual disputes that arose between the parties, there was any reason that he might have had for not giving the approval.

MR BARKER:   Yes, your Honour, had he given evidence.  He did not give evidence as it transpires.  But had the matter been raised in an intelligible way, the obvious thing for the appellant to have done was to amend the pleadings to plead that the purchaser in fact did not rely on that condition, that he had waived it.

GLEESON CJ:   One thing I am not clear about, Mr Barker, is this.  What was the relationship, if any, between the area of the land for which this approval would have been required and the land on which rice was actually grown by the purchaser?

MR BARKER:   Well, it is not the same land.

GLEESON CJ:   No, but, I mean, was there any connection, was there any reason for treating them differently?

MR BARKER:   The rice that he actually grew was in places where irrigation banks had been built so the rice could be grown there.  The 860 hectares which he proposed was not on land that had previously grown rice so it required a lot of work.

GLEESON CJ:   This is what was referred to as infrastructure?

MR BARKER:   Yes.

GLEESON CJ:   What does that consist of?

MR BARKER:   Well, firstly, you had to have it surveyed.  Then it was – the expression is lasered, to get levels properly.  Then there was a lot of earthwork to build banks, levee banks, irrigational ditches, installation of pipes, pumps and it also required the permission of the Department of Water Conservation and the Environment, as each rich crop does, but all that.  The problem was that it usually rains down there in June and July, and did in fact in 2001, so he cannot do any work in those months.  So the earthworks for sowing rice in September/October needed to be done before the middle of the year.  Had he been able to do that in January, February and March, he would have managed to get the crop in.  This was found by Justice Campbell and ‑ ‑ ‑

GLEESON CJ:   I am just wondering what is the downside from the vendor’s point of view?

MR BARKER:   There is none.  Do you mean in the purchaser going on?

GLEESON CJ:   No, in giving approval.

MR BARKER:   We would submit absolutely none.

CALLINAN J:   I suppose there might be some expense in reversing the earthworks, if he chose to do that, but I ‑ ‑ ‑

MR BARKER:   That would be a very odd thing to do in a country which is used substantially for rice.

CALLINAN J:   It seems unlikely, does it not, when you have a valuable cash crop or all of the infrastructure for it.

MR BARKER:   Yes.  It could only have added value to the place.

HAYNE J:   I take it your point is the proposition it could have only added value to the place is a proposition that could have and should have been explored at trial and it was not.

MR BARKER:   Yes, it certainly should have.

HAYNE J:   But this earthworks, et cetera, is that said to fall within the expression “to work up ground”?

MR BARKER:   Yes.  His Honour Justice Campbell found that and that was not upset on appeal.  The respondent in his submissions accepts the findings of fact made by Justice Campbell in the Court of Appeal.  If I might say in passing, the findings made by Justice Giles and the other two judges in the Court of Appeal seem to be contrary to what is now asserted in the notice of contention.  That also was not raised, of course, at the trial or on appeal.  We hear about it here for the first time.

But, looking at the narrative, he went on to the place on 12 September 2000 and started work and sowed 511 hectares.  The contract was signed on 25 September.  So he was doing that work right up to December.  He had no need to seek approval during that period because the contract was going to be settled in December.  However, on 12 September the vendor repudiated – ordered him off the place on 19 December.  The contract thereafter remained – rather unsteadily, but it remained on foot.

The Court of Appeal said because of that fact you might have a dispensation from seeking approval but the purchaser did not have give it – the vendor did not have to give approval.  If you did seek it, the contract was still on foot, special condition 24 was alive and the vendor did not have to give his consent.  Of course, the problem was one of complete futility in seeking approval from a party who repudiated and said, “Keep off this place, you are not coming back.  I have given you a notice of rescission.  The contract is at an end.”  That is the very reason why it would have been an exercise of futility for Mr and Mrs Park to have sought approval to the two locations.  So, effectively, they were denied the benefit of special condition 24.

Now, had none of this happened, we say there is no question but that approval would have been given.  If it had not been given, it would have been an act of caprice in bad faith because there was absolutely no commercial reason, or any other, why it should not have been given. 

Your Honours, schedule 2 – I do not think I need take you through the evidence in detail unless you want me to, but it is gathered there.  The clauses in the contract I have taken your Honours to.  The affidavit deposed to the conversation with the agent where the vendor wanted immediate possession by a purchaser.  There was evidence it was usual for these places to be sold in the spring and purchasers were often let on to take possession to do work. 

The work involved is set out at some length in Mr Park’s affidavit of 18 July in volume 1, pages 269 to 271 and volume 1, page 329 at 20.  In Mr Brother’s affidavit of 20 September he said that while looking at the place Mr Park said he wanted to plant three by 1,500 acre lots of rice and Brothers said, “Yes, there is plenty of land for that but it needs the infrastructure and that’s your job.”  So we say that everything points to a proposition that, had there not been this falling out, Mr Parks would have got his crop in for 2001/2002.

Schedule 1 is designed simply to show you how Mr Brothers responded to the claim, how it was very much a live issue right up until final submissions before Justice Campbell.  It was raised in the points of claim in Brothers – if I could take you shortly to that affidavit at volume 1, page 281.  Mr Brothers, in response to Mr Park’s claim, said in paragraph 11 that:

Because of his breach Mr Park was responsible for his own exclusion and the subsequent consequences and losses to the rice and wheat crops were his own fault. 

The discussion about the three blocks is at paragraph 8 of that affidavit on page 280.

The problem with the defence as it was is that it did no more than deny everything asserted in the points of claim which made a nonsense of it because the points of claim included, of course, the fact of the contract, the fact that Brothers owned the land, the fact that Elders were his agents, the fact that the purchaser entered the land on 12 September ‑ ‑ ‑

GUMMOW J:   What is the virtue of having points of claim rather than a statement of claim?  It does not have to be sworn in New South Wales, is that ‑ ‑ ‑

MR BARKER:   I wondered that myself.  I gather it was a direction given by Justice Campbell that that is how the matter be approached.

GLEESON CJ:   This procedure originated in the Commercial Division, as I recollect it.

MR BARKER:   Yes, it has found its way into equity.  I do not know how long it will stay there.

GLEESON CJ:   I am just looking at page 958, paragraph 81.  This is the way Justice Campbell dealt with the claim for damages.  At the bottom of 958 and the top of 959 he says that the vendor was aware of what was intended to be done, while he was not aware of all the details of the plans for cropping the property, and presumably in his judgment he just passed over this question of approval ‑ ‑ ‑

MR BARKER:   Yes, it was not alluded to by anybody.

GLEESON CJ:   He referred to approval of the Department on page 958 at line 35 but he does not refer to the need to get approval from the vendor. 

MR BARKER:   No, and we say that is a consequence of the way the case was conducted on both sides.  I mean, the submissions of the respondent now, in effect, say, “Look, we should be relieved because of the incompetence of our lawyer at the trial”, but that is really a bit much to accept, particularly when, if one looks at page 196 of volume 1, line 40, his Honour said to Mr Park who was being cross-examined by Mr Cantwell, solicitor:

Q.       In various answers you have been answering as though Mr Cantwell personally has knowledge of this property?
A.       He has.  He lives with Clive.

That is Brothers.

He is there all the time.  He is his best mate and has been for 30 years. 

And Cantwell said to his Honour:

I don’t pose my objection to that comment but I see it as I am not offended by it and I have an association with the property.

And he went on then to say that he had “an extensive knowledge of the Riverina” and Australia and he had been there for 40 years.  So this was an obviously deliberate choice on the part of the respondent to adopt a minimalist approach to the proceedings, employ his friend who had an interest in the property and presumably in the outcome and then display some real interest in the proceedings after judgment.  We submit that simply should not have been permitted to happen.

CALLINAN J:   Mr Barker, I notice under condition 26 that your clients, if they performed the contract, got the benefit of sales of the stock that were made at any time after the execution of the contract.  So it was an unusual contract in a sense in that it conferred substantial benefits upon the purchasers before completion and those benefits may well have been reflected in the sale price for all we know.

MR BARKER:   Exactly, your Honour, but none of this it was possible to explore at the hearing.  In our submission, the judgment of the Court of Appeal on the issue of raising the matter on appeal for the first time was contrary to what had been said in many cases.

We say that three of these cases, that is University of Wollongong v Metwally, Water Board v Moustakas and Whisprun v Dixon, all of which I think are on my learned friend’s list, established these propositions.  Firstly:

It is elementary that a party is bound by the conduct of his case.  Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

That is University of Wollongong v Metwally.  Secondly, it is necessary to look not just at the pleadings but at the actual conduct of a proceedings to see whether a point was or was not taken at trial.  As to that in schedule 1 we have the references to cross‑examination of the appellant by Mr Cantwell on this very issue.  They cross‑examined him, for example,

about quantum, about whether he could properly claim $900,000, but was entirely silent as to the approval point.  Thirdly, we say that the cases say:

that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below.

That is the Water Board v Moustakas at page 497.  In Whisprun v Dixon it was said that:

It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. 

I think your Honour the Chief Justice said this, that:

Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross‑examination.

That is surely the case here where, had he been given notice instead of being ambushed on the first day of the hearing of the appeal, had Mr and Mrs Park been given notice of this issue, it could have been properly litigated before Justice Campbell and was not.  In our submission, the judgment of the Court of Appeal is clearly wrong and should be set aside.  If your Honours please.

GLEESON CJ:   Yes, Mr Hughes.

MR HUGHES:   We rely, your Honours, on what we have said in our written submissions which I will endeavour to develop.  One noticeable feature of this case which bears upon the discretionary point is that there was a marked disparity of forensic strength on each side in the proceedings before Justice Campbell. 

GLEESON CJ:   I have not checked on this, but who represented the defendant before Justice Young?

MR HUGHES:   Before Justice Young the defendant was represented by Mr Anthony Rogers of counsel.  Reference to the reasons for judgment of Justice Young discloses that there was a lively issue as to the validity of the notice of rescission.  Ultimately Justice Young held that time was not of the essence of the obligation to pay 150,000 by 7 October for water, that is to say the plaintiffs’ obligation, the present appellants’ obligation.  What we would say needs to be clearly borne in mind is that there was a real issue as to the defendant’s entitlement to give a notice of rescission resolved adversely to the defendant in a reserve judgment of Justice Young, Chief Judge in Equity.

What has to be borne in mind, in my respectful submission, is that on the evidence, and indeed on the findings, below at first instance and in the Court of Appeal, the parties were at loggerheads from early October because, rightly or wrongly, as Justice Young held wrongly, the defendant contended that he was entitled to rescind the contract for non‑payment, which was not in issue, by the plaintiffs of a large sum of money as a deposit payable for the provision of water.

The relationship between the parties had clearly soured to the extent that the relationship had really broken down.  No one has ever contended that the notice of rescission, the invalidity of which Justice Young ruled on, was given otherwise than in good faith.  That was the dominant fact in the breakdown of the relationship from early October on.  In that context one has to ask, your Honours, why was not the defendant within his rights in saying, “I will not give you approval.  I will not have you on the land”?

The contractual provision for allowing the purchaser, the Parks, on the land was entirely for the purchaser’s benefit.  True it is that there had been an implied approval for the Parks to go on the land to prepare the ground and then plant the rice crop, or what was hoped to be a rice crop, for 2000 and 2001, but the question of entitlement to go on the land for the ensuing year’s crop and all work associated therewith was within the discretionary grant of the vendor and, in our submission, the only fetter upon the vendor’s entitlement to withhold the consent was that he must not withhold it in bad faith.

There was no suggestion before Justice Young of bad faith on the vendor’s part and the bottom‑line position of the respondent is that he had an unfettered right to withhold approval to the locations upon which the appellants said they wanted to plant, or prepare ground and then plant the 2001/2002 crop.  That is the first essential point in the case.

HAYNE J:   Just before you move on, the reference to the power being confined by notions of good faith, could I understand what content you give to that expression?  Where would a refusal without reasonable cause lie?

MR HUGHES:   There would be circumstances in which a refusal without reasonable cause would not amount to a refusal in bad faith, your Honour.  The two concepts are distinct.  If I may move on with my next point and this really brings me to the proposed notice of contention, your Honours.  In paragraph (21) of our written submission we referred to the fact that the presentation of the appellant’s case at trial omitted any attempt to prove that they either intended to seek or did seek prior to completion the respondent’s approval to work up the 860 acres - I have mistakenly called it 866 but nothing turns on that – for cropping.  We rely there on what appears in the second volume of the appeal book at pages 992 and 993.

HAYNE J:   Just before you go to those passages, what are we to make of the first sentence of paragraph 86 at page 960?

MR HUGHES:  

No other obstacle to the planting of 860 hectares has been shown to exist.

HAYNE J:   But I say this to you, at first blush that seems to suggest that the only matter in play at trial were the matters that appeared and were dealt with between paragraphs 81 and 85, and in particular no question of vendor approval was then in play.

MR HUGHES:   At trial - I will come to the points of claim - there was a distinct allegation in the points of claim of reliance upon a cause of action under clause 24 of the special conditions, your Honour.  When one puts the articulation of that cause of action under a legitimate microscope one notices - and this is paragraph 16 of the points of claim in volume 1.  They start at page 88 ‑ ‑ ‑

GUMMOW J:   Page 92.

MR HUGHES:   Page 88 of volume 1 ‑ ‑ ‑

GUMMOW J:   Yes, page 92, paragraph 16.

MR HUGHES:    ‑ ‑ ‑ and page 92.  Paragraph 15 sets out, as we noted in our written submission, clause 24 in ipsissimis verbis.  Paragraph 16 propounded an interpretation of clause 16 which simply disregarded the requirement of vendor’s prior approval:

On its proper construction, special condition 24 entitled the plaintiffs to do all things necessary to plant and establish a rice crop on “Jellalabad” by November 2000 (which to the knowledge of both parties was the latest time by which a rice crop could be planted) to be harvested in April-May 2001.

So, the plaintiff - and it is to be remembered that he was represented by senior counsel at the trial - simply ignored or disregarded the requirement of approval.  One can search in vain, your Honours, for any reference, ever so passing even, in the opening of the plaintiff’s case before Justice Campbell for any reference, even the slightest, to the requirement of approval.  The plaintiffs chose to propound a case for breach of clause 24 without adverting to the plain fact, must have been staring them in the face, that the right to work up and then plant a 2001/2002 rice crop was a qualified right.  It was not an absolute right, it was a right contingent upon the grant of approval which, as I have suggested earlier in my argument, was a right to refuse so long as the refusal was not in bad faith.

GLEESON CJ:   Just before you pass from that, as it is convenient to deal with this by reference to page 92 where clause 24 is set out, as I think has already been mentioned, the approval was directed to the question of the locations not, as it were, to the concept of working up the property.  There would have to be something about the locations that would justify the refusal to approve in good faith terms.

MR HUGHES:   In my submission, respectfully, no.  The right of refusal was unqualified.  For instance, what if the defendant, in good faith but erroneously, because of the contretemps over the non‑payment for the water, thoroughly distrusted the appellants and said, “My distrust is such that I don’t want you on the land digging around making bays and lasering.  My distrust of you is such that I want nothing to do with you”.

GLEESON CJ:   That, I think, may raise an interesting question of construction of clause 24.  I understand the point you make but looking at pages 958 and 959 in that sentence commencing at line 52 on 958, it is unclear what Justice Campbell was finding – and he probably was not making any relevant finding – about the extent to which your client knew that the proposed 860 hectares were in the South Coonoon paddock as to 600 hectares and the remainder in the dam paddock.

MR HUGHES:   The evidence does not disclose any communication by the plaintiff, Mr Park, to Mr Brothers, the respondent, or anyone on his behalf as to his wishes or intentions as to the location of the land for a 2001/2002 rice crop, your Honour. 

HAYNE J:   That might be thought to have possibly provoked some examination of what exactly was meant by paragraph 8 of the affidavit of Mr Brothers at page 280:

During discussions to purchase the property Mr Park said he wanted to 3 x 1500 acre blocks of rice.  I said there is plenty of land to do that – but there is no infrastructure – that is your job.

MR HUGHES:   Yes, “It is a matter for you”, is what that means. 

HAYNE J:   There might well have been seen there to be some hook on which the cross‑examiner might have explored a little what was meant by “3 x 1500 blocks”, where were they to be, what was understood by these men who knew about these things.

MR HUGHES:   It has to be remembered, in my respectful submission, that when one is considering the contention scope for cross‑examination in a hypothetical situation that did not arise, that Mr Brothers was, on the evidence, incapacitated from attending the trial before Justice Campbell.  He was suffering from a heart condition and there was an application for an adjournment which in Justice Campbell’s discretion was refused. 

Mr Brothers had given evidence, however, before Justice Young.  I do not wish to go into it, but it is fair to say on a reading of Justice Young’s reasons that he formed a not unfavourable view of Mr Brothers’ credibility on the issue that arose in that case.  Mr Brothers gave quite vibrant evidence.  If one can picture Mr Brothers sitting there giving evidence, he is an elderly person in bad health and he said he was annoyed, upset, by the failure of Mr Park to pay for the water.  It was a very considerable sum of money - $150,000. 

I am afraid I have perhaps erred in diverting from the main topic that I want to address at the moment, which is this, and it brings me to the notice of contention point.  The notice of contention point is encapsulated in paragraph 21 of our written submissions which was not the subject of any response by the appellants.  One can search the appellants’ submissions in reply in vain for any response to paragraph 21.  We would wish to refer to some evidence that Mr Park gave about his intention to carry out work with respect to the 2001/2002 rice crop.  At paragraph 86 of his affidavit of 18 July 2002, appeal book 1, page 277, this is what he said at line 10:

It was my intention to plant a further 860 ha of rice in the 2001/2002.  600 ha was to be planted in South Coonoon Paddock.  246 ha was to be in Dam Paddock.

87.      Had the contract settled in December 2000, I would have had possession of Jellalabad from settlement and would have been able to carry out the necessary steps to landform that area and plant rice in September/October 2001.

So his intention, as plainly emerges, your Honours, from that portion of his affidavit, to do work in connection with a prospective 2001/2002 rice crop was conditional upon completion of the contract.  He reiterated that assertion in his oral evidence in volume 1 of the appeal book at pages 221 and 222.

GLEESON CJ:   Do you mean by that that if there had been never any dispute between the parties and the contract had proceeded normally to completion ‑ ‑ ‑

MR HUGHES:   In December.

GLEESON CJ:    ‑ ‑ ‑ in practice, there would have been no question of obtaining approval in respect of the 2001/2002 rice crop.

MR HUGHES:   That is so and his affidavit makes it very plain that his intention in relation to work connected with the 2001/2002 rice crop was an intention conditional upon completion of the contract.  He said the same thing, your Honours, at volume 1, 221, 222 in answer to a not very intelligible question by Mr Cantwell:

If there had have been no problems, we would have been started in December, right, because we had our experts.  The farm was supposed to settle on 7 December and we had our experts teed up to do everything, move into there and do everything.  After 7 December we would have started our plant, we would have started there before the end of December.  January, February, March, April, that’s five months.  We had plenty of time to do the job.  It never rained then till June.

Now, that is confirmatory of his affidavit evidence as to the conditional nature of Mr Park’s intention with respect to work for a 2001/2002 crop. 

I want now, if I may, your Honours, while in this line of territory, so to speak, to invite your Honours’ attention to some findings made by Justice Campbell.  If your Honours would be good enough to go to volume 2 page 954, paragraph 67 of Justice Campbell’s reasons, his Honour said this:

Following that decision –

his Honour was there referring to Justice Young’s decision negating the validity of Mr Brothers’ notice of rescission, that appears from paragraph 66, your Honours, on page 953.  Then his Honour went on to say:

the contract was completed on 24 March 2001.  In anticipation of the contract completing, the Parks made application to the Department, on 1 March 2001, for permission to sow 860 hectares of the property with rice during the 2001/2002 season.  The area intended to be sown was country which had not previously been planted to rice.  About 600 hectares of it was in the South Coonoon paddock, just north of the Murrumbidgee River.  The remaining area was in the Dam Paddock, to the west of the dam.  The part intended to be planted which lay in the South Coonoon paddock was part of the area of 11,000 acres which had been identified in the plan referred to in Clause 30 of the Contract for Sale.

The next bit of his Honour’s reasons is important:

On 11 July 2001 an officer of the Department wrote to Mr Park saying:

“… the vegetation issue on those areas applied for rice in 01/02 will not impede your development program.

That is the program which included 860 hectares for rice in 2001/2002.

As this land has been cleared in the last 10 years and as the lignum was part of an ongoing clearing program, you will not be penalised for the previous owner’s actions.”

Then his Honour went on to say:

The Department was not willing, however, to grant permission for the whole 11,000 acres to be used for cropping.  Mr Park negotiated with Department officers, and eventually was able to obtain permission to have an area which he put as being between 3,500 and 4,000 acres approved.

Then, if one goes forward to see where else his Honour Justice Campbell dealt with the same subject, one finds a reference to it in paragraph 81 on page 958, a few pages on.  His Honour said:

At the time of entering the contract Mr Park had formed plans for what would be done with the property, so far as cropping was concerned, after the 2000/2001 rice growing season.  He intended to plant 860 hectares of rice in the 2001/2002 rice growing season.  Of this, he planned that about 600 hectares was to be in the South Coonoon Paddock, and the remainder in the Dam paddock.  The whole of the rice crop to be planted in 2001/2002 was to be planted on newly developed irrigation land.  To be able to plant rice on that newly developed land, he would have needed first to obtain Departmental approval to plant the rice to the area in question.

In other words, your Honours, to the 860 hectares.  Putting what I read at page 958 with what I read from page 954, his Honour has found that the approval was not sought until after Mr Park had obtained the favourable decision of Mr Justice Young.  Mr Justice Young’s decision, I can tell your Honours, was handed down on 27 February 2001, a Tuesday – we have consulted the calendar – and it was on 1 March, two days after that decision, that the application was made for necessary departmental approval for the work and planting connected with a 2001/2002 rice crop.  Those are findings by Justice Campbell.

GLEESON CJ:   Mr Hughes, I just want to get clear the context in which we are considering this argument.  We are concerned with the assessment of damages, the quantum of damages, there being no dispute at this stage between the parties that your client is liable to pay some damages.

MR HUGHES:   Some 570,000 plus interest.

GLEESON CJ:   The damages are for what breach of contract?

MR HUGHES:   Not for breach of contract; mainly for misleading conduct contrary to the Fair Trading Act. 

GLEESON CJ:   Putting aside the Fair Trading Act or the misrepresentation aspect of the case which has gone in the past, this is an issue about quantum.  Is there an issue about breach?

MR HUGHES:   Yes, there is.

GLEESON CJ:   That being the approval?

MR HUGHES:   The issue to which I am now addressing this submission in which I have endeavoured to show that the approval for the 860 hectares was not sought until after Mr Park was secure in the knowledge that he could complete the contract.

GLEESON CJ:   What is the breach sued on, which is the context of this argument?

MR HUGHES:   The breach sued on is the breach averred in paragraph 16 of the points of claim.  That breach specifically relates to the 2000/2001 crop.

GLEESON CJ:   Where do we see that?

MR HUGHES:   Paragraphs 15 and 16 and then I need to ask your Honours to read on.  It starts at page 88.  I think I referred your Honours to 15 and 16.

GLEESON CJ:   Yes, you did.

MR HUGHES:   Then there was an implied term pleaded:

17.      It was a term of the contract, implicit in order to give business efficacy ‑ ‑ ‑

GLEESON CJ:   I think it is paragraph 20 on page 93.

MR HUGHES:   Yes.

GLEESON CJ:   So the breach is that on 19 December 2000, “the defendant wrongfully excluded”.  That is why I asked this question.  As I understand it, in the way the case against you was conducted, if the contract had proceeded to completion in December 2000, no question of approval would have arisen for the 2001/2002 rice crop.

MR HUGHES:   Yes, your Honour.

GLEESON CJ:   The breach averred was a breach the nature of which, as it were, evaded this question of approval.

MR HUGHES:   Indeed, skirted right round it.

GLEESON CJ:   Was that the breach found by Justice Campbell?

MR HUGHES:   The breach found by Justice Campbell was a breach of clause 24.

GUMMOW J:   That appears at page 955, paragraph 72 which governs what follows as to the rice crops.

MR HUGHES:   Yes, your Honour, but his Honour found that breach – and I am not saying this critically of his Honour – without considering the approval question.  He abstained from considering it because, in the formulation of the cause of action, paragraph 16, an entitlement to go on the land was pleaded without reference to any condition of prior approval.

GLEESON CJ:   But did his Honour find a continuing breach from 19 December?

MR HUGHES:   His Honour, as I would respectfully seek to read his reasons, did not.  You see, your Honours, it is very important to concentrate, as your Honour the Chief Justice is, with respect, doing, on the exact breach averred as the foundation of the cause of action.  One can disregard the implied term pleaded in paragraph 17 because that fell out of the case, it did not assume any importance. 

Your Honours, Justice Campbell had to deal with the case on the basis of an opening by my learned friend, Mr Murr, who appeared for the plaintiffs, in which he said – I should go to it – at volume 1, page 110, line 45, after describing the proceedings for specific performance:

On 4 July 2003, and there has been filed in court today, points of defence which are no more than a global denial of the claim.

No reference by Mr Murr anywhere in his opening to the requirement of approval – dead silence, your Honours.  Your Honours will have noticed that there has been an attempt to invoke a rule of pleading by some sort of an analogical process contained in Part 15 rule 13 of the Rules of the Supreme Court.

GUMMOW J:   These were not pleadings.

MR HUGHES:   They were not pleadings, and Part 15 did not bite, did not apply to the points of claim.  Much is made, or sought to be made, in the submissions of the appellant in this Court of the applicability of Part 15 rule 13 to the effect that there is an implied averment of performance of conditions precedent.

GLEESON CJ:   That way of putting it – it is not a pleading – in opening on page 110 to which you have drawn attention is interesting at line 54.  This is described as a claim for damages “arising from the consequences of Mr Brothers ejecting Mr Park from the property”, which I presume is what happened on 19 December 2000.

MR HUGHES:   Yes, he was told to go, and that is pleaded as a breach of special condition 24.

GLEESON CJ:   The case seems to have been conducted upon the assumption that if the relations between the parties had not broken down as manifested by that ejection, the contract would have been completed ‑ ‑ ‑

MR HUGHES:   In December.

GLEESON CJ:   ‑ ‑ ‑ in December and no question of any need for approval in relation to the 2001/2002 rice crop would have arisen.

MR HUGHES:   But that approach begs the question of approval.

HAYNE J:   Why?  I do not follow your answer.  Why does it beg the question of approval if the contract had been completed without this ‑ ‑ ‑

MR HUGHES:   There was no need for approval.

HAYNE J:   Just so.  Their complaint is, “If you hadn’t acted wrongfully, we would have had a crop in.  You acted wrongfully and we didn’t get a crop in, ergo.”  So is not approval a red herring?

MR HUGHES:   No, because they kept the contract on foot, your Honour.  They kept it on foot, as has been found – there is no doubt about that – so that the approval requirement was still applicable, whatever it meant.  I have propounded the suggested meaning earlier in my submissions this morning. 

In the Court of Appeal, Justice Giles in, I think, paragraph 83 or thereabouts of his reasons referred specifically to the fact that whereas breach of a condition to complete the contract could have been pleaded, the appellants did not allege such a breach.  That issue was never in play.  It is crucially important, in our respectful submission, to bear in mind what the breach alleged was, and I have described that by reference to clause 15, 16.  When one comes to the pleaded claim in respect of the 2001/2002 crop, your Honours observe paragraph 20, page 93, it is said:

On 19 December, in breach of:

relevantly –

2.        The terms of the contract for sale alleged in paragraphs 15, 16 and 17 above,

the defendant wrongfully excluded –

That takes you back to the unqualified interpretation propounded in paragraph 16 of the points of claim, an interpretation propounded without any reference whatsoever to approval.  Then they go on to say at 21 by reason of the exclusion in breach of clause 24:

the plaintiffs were prevented from caring for the rice crop –

that is for 2001/2002.  Then one goes down to 22, 23 and 24 in which it is said relevantly the contract was settled on 24 March, the appellant having been restored to access after the 27 February 2001.  Then it is said:

As a result of their exclusion from “Jellalabad” from 19 December 2000 to 27 February 2001, the plaintiffs have suffered loss of damage damages.

Then in the loss and damage there is particularised item 2 on page 94:

Loss of profit from further disruption of cropping programme in 2001‑02.

That loss and damage is tied, as it were, to the chariot wheel of paragraph 16 – tied, and tied only, to an alleged breach of special condition 24.  So much was conceded, as my junior reminds me, by my learned friend, Mr Murr, in the Court of Appeal. 

Now, coming back briefly to the proposed notice of contention which we seek leave to file, it is plain, we submit, on Justice Campbell’s findings at pages 954 and 958 that permission was not sought.  The requisite statutory permission was not sought for the working of the 860 hectares and the planting of rice until 1 March, two days after Justice Young’s decision, and the permission was apparently not granted, if one reads again page 954 and 958, until 11 July, so that on those findings two conclusions, in our respectful submission, emerge.  One, compatibly with Mr Park’s affidavit and oral evidence, to which I have already alluded, there never was an intention to work up 860 hectares for a 2001/2002 rice crop pursuant to any permission or approval intended to be sought under special condition 24.  That is the first conclusion.  The second conclusion, which is relevant to the point sought to be taken in the proposed notice of contention, your Honours, is that no work could be done without permission, as his Honour Justice Campbell found, and that permission was not granted until July 2001.

So that we assert that – I suppose one way of putting it is that there is, on that evidentiary material, no causal connection between any alleged breach of special condition 24 and the damage said to flow from failure to plant the 2001/2002 crop.

HAYNE J:   May I understand that proposition a little better.

MR HUGHES:   Yes, your Honour, I hope I can ‑ ‑ ‑

HAYNE J:   The proposition begins, does it not, from an acceptance of the fact that the exclusion was wrongful?  Is that right?  We begin examination by accepting that the exclusion of the purchaser from the land was in breach of the contract.  Is that right?

MR HUGHES:   Yes, your Honour, but not the breach pleaded.

HAYNE J:   Why does one examine the consequent questions of causation on any hypothesis other than the hypothesis that the contract would have been performed according to its terms?

MR HUGHES:   Because to propound that hypothesis does not pay regard, your Honour, to the only breach that was pleaded.  We were not sued for a repudiatory breach committed on 19 December.  We were sued for a breach of clause 24 because we did not give approval.

GLEESON CJ:   That is what I am puzzling about, Mr Hughes.  It seems to me that the key sentence in the reasoning of the Court of Appeal is on page 1055, paragraph 75, the second sentence in that paragraph.

MR HUGHES:   Paragraph 75?

GLEESON CJ:   Paragraph 75 and this is the critical finding:

The vendor was not in breach of contract in excluding the purchasers from working up for crops the 860 hectares . . . because –

Now, what the vendor had actually said was, “Get off my land altogether”. 

MR HUGHES:   Yes.

GLEESON CJ:   If the vendor said to the purchasers on 19 December, “Get off the land altogether and stay off”, how did any question arise as between them about location of the 860 hectares?

MR HUGHES:   The question of location, your Honour, had never arisen. 

GLEESON CJ:   No, exactly.

GUMMOW J:   And now could never arise.  That is the problem, is it not?

MR HUGHES:   Yes, but the plaintiff is still stuck with its pleading.  This case cannot now be decided on a breach which was not averred in the points of claim and if one looks at the way the argument went in the Court of Appeal at page 1018 this subject of when, on the evidence, the plaintiffs proposed or intended to do the work came under a spotlight.  At page 1018, line 20, Justice Wood said:

The critical question seems to me to be this, that when did he intend to do this work?  Your case is based on breach of cl 24.

My learned friend said, “Yes”.  He was then pinning his case on clause 24 and only on clause 24.  That raised an issue as to whether ‑ ‑ ‑

HAYNE J:   One does need to go on and read what counsel says at lines 45 and following on the same page, Mr Hughes, where counsel makes the point that what fixed when the work would be done was the calendar and had the contract followed its ordinary course it would have been done, would it not, post completion?

MR HUGHES:   Before mid – not prior to completion.

HAYNE J:   Post completion.

MR HUGHES:   Post completion, exactly.

HAYNE J:   Yes.

MR HUGHES:   That is another perspective, with respect, from which to examine the point I am endeavouring to argue.  The findings of Justice Campbell have totally failed to support the cause of action based on a breach of clause 24.

GUMMOW J:   Justice Campbell described it as the plaintiffs claim damages for breach of contract arising from their wrongful exclusion from the property.

MR HUGHES:   Yes.

HAYNE J:   Which reflects paragraph 20 of the points of claim, page 93, which is “in breach of” amongst other things:

The terms of the contract for sale alleged in paragraphs 15, 16 and 17 above,

the defendant wrongfully excluded –

Now, you go on to emphasise:

so that they were unable to go onto the property to care for –

but the breach is a breach of clause 24 by excluding.

MR HUGHES:   Yes, in the absence of approval.

HAYNE J:   There is the point.

MR HUGHES:   There is the point.

HAYNE J:   Yes.

MR HUGHES:   I doubt whether further iteration of it or reiteration of it by me, your Honours, will serve any useful purpose.  The point is there.  I have endeavoured to expose it.

HEYDON J:   Mr Hughes, do you advance any argument along these lines.  It took the Department nearly four and a half months to answer the request to carry out the work that was made on 1 March which they answered on 11 July.  If the contract had been completed on 7 December, or for that matter late in December, and an application had then been made to the Department, if the same interval of time had elapsed there would not have been time to do four months of infrastructure work on the land before ‑ ‑ ‑

MR HUGHES:   No.  That is a causation point, I suppose.

HEYDON J:   Yes.

MR HUGHES:   But the important thing is that the tardiness of the Department really put the doing of the work out of the question for the 2001/2002 rice‑growing season.

GLEESON CJ:   How did Justice Campbell deal with that matter?

MR HUGHES:   He did not deal with it at all, your Honours.  That is a product of the way the case was dealt with.  It is very significant, your Honours may think, that in the way the learned senior counsel for the plaintiff conducted the plaintiff’s case at trial he accepted that the points of defence, defective as the Court of Appeal found them to be, put everything in issue.  I think I have given your Honours a reference to that.

As we say in our written submission there was a change of tack in the Court of Appeal.  That point is taken up in the written submissions in volume 2, page 1010, but we refer - the change of tack appears at page 1010 in volume 2.  Justice Ipp at line 37 asked this question:

Is it correct that this issue was never addressed at the trial?

My learned friend Mr Murr said:

Never.  It wasn’t pleaded.  The defence is virtually an abuse of process, and perhaps in retrospect we should have moved to strike it out.  But we didn’t, we met the case, and we met the case on the issues that were raised.  This was not one of them.

Of course, as we venture to say, using words of moderation in our written submission, that statement, “This was not one of them”, was on examination hardly accurate because the points of defence specifically denied everything and specifically referred to the contract, reliance on the contract.

Your Honours, there has been a manifest tendency in this case at Court of Appeal level and, with respect, here to heap all the blame upon the shoulders of the hapless Mr Cantwell.  That is hardly appropriate because – and I have to say this – senior counsel appearing for the plaintiffs with clause 24 staring him and his junior in the face surely must have appreciated, despite the criticisms that can otherwise be made of the points of defence, that they raised everything, including the interpretation propounded in paragraph 16 of the points of defence of special condition 24.  Mr Cantwell, who it may safely be assumed had never heard of Part 15 of the Supreme Court Rules, is criticised because he did not raise approval.  The same criticism can be made perhaps even more strongly of the plaintiffs’ own conduct by leading counsel of the plaintiffs’ case, tied as it was to special condition 24.

As we have said in our written submission, the defendant’s legal advocate can certainly be criticised for the way in which he made a general denial, but at least it was a general denial and accepted as such at first instance by my learned friend Mr Murr in his opening.  It was a curious change of tack when my learned friend Mr Murr said to the Court of Appeal that this was an abuse of process.  In justifiable self‑criticism, he said, “I should have moved to strike it out”, but he did not.  He did not; he left it there.

There was, your Honours, a grossly – I use that expression with no intent of offensiveness – a gross inequality of forensic firepower between the two sides before Mr Justice Campbell.  Let me give your Honours some examples which demonstrate that proposition.  If your Honours would be good enough to go to volume 1, page 215, it is obvious that Mr Cantwell imposed, by the way he conducted the case, intolerable strains on Justice Campbell’s patience ‑ ‑ ‑

GUMMOW J:   I do not think the judge cracked.

MR HUGHES:   He did not.  I do not have to show that he cracked and, as one would expect, his Honour did not.

GUMMOW J:   Yes, exactly.

MR HUGHES:   But he said at page 215, line 5:

That has absolutely nothing to do with it.  I have the distinct impression you are seeking to waste the time of the Court.

Page 217, line 15:

HIS HONOUR:  This is ridiculous.  I will not put up with this sort of cross‑examination.  It is a complete waste of time.  If you would ask some relevant questions, you may go ahead.

I want to make it perfectly plain, your Honours, that I am not making any criticism whatsoever of the somewhat stringent observations.

HAYNE J:   They might have been provoked just a little by the questions that preceded them:

Q.       What type of lambs were they?
A.       Four legged.

Q.       Designed for wool?

GLEESON CJ:   I think they represent what I once heard you describe as “tentative asperity”. 

MR HUGHES:   Yes.  Perhaps it is a little more than tentative but even if it was only tentative.  The learned judge accused elsewhere Mr Cantwell of “filibustering”, no doubt correctly.  That is 225, line 30. 

At line 20 on page 225 his Honour gave a ruling on Mr Cantwell’s application for leave to keep going with the cross‑examination because his Honour had imposed a time limit on Mr Cantwell.  His Honour said this:

The application to further cross‑examine is rejected.  It is true that this is a case where there is a lot of money involved.  There are difficulties and the Plaintiffs have experienced counsel.

It is perfectly plain what his Honour was getting at.  The difficulties were created by the manifest incompetence of the lawyer appearing for the elderly defendant who could not give evidence because of illness.  His Honour went on to say at line 25:

The other matters which have been put in support of the application I do not regard as ones which justify an extension of time.  The cross‑examination this morning has largely been an exercise in filibustering.  It would be an abuse of the Court’s process to allow it to continue.  I will not allow it.

GLEESON CJ:   Mr Cantwell is a Victorian practitioner I see.

MR HUGHES:   Yes, I was hesitant ‑ ‑ ‑

HAYNE J:   You were forbearing from mentioning this fact I am sure, Mr Hughes.

MR HUGHES:   On the basis, your Honour, that, as Sir Owen Dixon once said, advocacy is tact in action.

GLEESON CJ:   I was wondering something a little different.  That I presume is not an address for service that you see on page 100?  Anyway, there is no question that he was a practitioner of the Supreme Court of New South Wales?

MR HUGHES:   I have no reason to suggest otherwise.  But, your Honours, if one were to endeavour to construct a simile to illustrate the gross disparity of forensic firepower between the two sides in this case, one’s mind goes back to September 1939 when the Wehrmacht marched into Poland and the strongest resistance were cavalry regiments of the Polish Army.

GLEESON CJ:   The problem is that if the argument against you is right, Mr Cantwell’s decision not to take any point about approval was a sensible decision, presuming it was a decision.

MR HUGHES:   If one can impute a sensible decision to ‑ ‑ ‑

GLEESON CJ:   Perhaps I should rephrase that.  It was a correct decision.

MR HUGHES:   Correct decision, yes, but one would question whether in the context of this case, created in part, in very large part, by the opening of leading counsel for the plaintiff, the question of approval ever crossed Mr Cantwell’s mind.  There was a case on approval to be argued, whether ultimately right or not, because – a case on non‑approval available to be argued because, whether right or wrong, the Court of Appeal entertained it and upheld it, and that was the only case that the plaintiff sought to make in respect of the 2001/2002 rice crop. 

There is another aspect of the case to which I should refer which bears upon discretion and it is a point that is articulated in our written submissions at paragraph 24.  Your Honours, when at the hearing of the appeal below the respondent’s counsel sought and obtained leave to raise the prior approval issue – and this occurred at appeal book volume 2, page 978 – the appellants had two options in a situation where their counsel, who was the counsel who had appeared for them at the trial – there is no doubt that the appellant in the Court of Appeal, my client, the respondent here, got leave to add the approval point to an amended notice of appeal.  That was ground 8, particularly ground 8(iii).

The appellants had two options, we would submit.  That is appeal book 967 to 969, volume 2, the amended notice of appeal.  When this point was sought to be raised and permission was given to raise it, that is the approval point, the appellants had two options:  to seek an adjournment with a view to considering and propounding amendments to the points of claim and adducing evidence as to the availability of testimony to support such amendments or to meet the issue then and there.  They exercised the latter option, your Honours.  I think that appears from 978:

We will allow the amendment to include the new ground 11.

So ground 8 and ground 11 were allowed to be raised.  That is 978, line 20.  My learned friend was asked by Justice Wood, Chief Judge at Common Law, between lines 5 and 10:

Are you prejudiced by arguing this point now?

MURR:   Less prepared than we might be.

WOOD CJ AT CL:   To what extent?

MURR:   I will argue it if it’s allowed.

WOOD CJ AT CL:   Do you feel confident to argue?

MURR:   I do.

Now, it is perfectly plain that Mr Murr could have had an adjournment for the asking. It is perfectly plain that even at that stage in the Court of Appeal there was potentially ample power of amendment – I think it is section 75A – ample power to amend the pleadings to escape from the net in which they had enmeshed themselves in their interpretation of special condition 24, but no such course is taken. Mr Murr says, “I will deal with it now.” That is dealt with in paragraph 25 of our written submission.

In the circumstances we say it is too late and quite inappropriate for the appellants to put to this Court that the approval issue could possibly have been met by calling evidence at the hearing as is contended in grounds of appeal 4 and 5 at appeal book volume 2, page 1068.  The appellants did not assert in the Court of Appeal that any, and if so what, evidence of that kind was available.  The Court of Appeal is criticised in my learned friend’s specific submission to this Court this morning for not having the opportunity – is criticised for depriving the appellants of an opportunity to amend the pleadings and call evidence.  If evidence could be called, one would have ventured to think, your Honours, that Mr Murr would have been in a position to advert to it and to take a course different from the course that he did take by clear election, “I will go on and I will argue the approval point here and now.”

MR BARKER:   It does not.  It was accompanied by, however, the agent’s comment that Mr Brothers wanted someone on the place as quickly as possible because he was not well.  That is in Mr Park’s early affidavit at page 32, line 10:

At one of the inspections, I recall having a conversation with Wills –

he was the man from Elders –

in which he said words to the effect “Clive Brothers has been very ill, he has had a series of heart attacks and he is unable to properly look after the farm.  He requires the purchaser to immediately take possession of the farm and look after it”.  I said words to the effect “I am not particularly happy with that because it is obvious that the farm and particularly the cows and sheep have not been properly looked after.  All I really want to do immediately is to prepare the property and grow rice on it.”  Wills said “All the same, that is what the Vendor requires”.  I said words to the effect “Well if the Vendor is sick, I will do it”.

Then Mr Brothers denied saying that to the agent in an affidavit which was before Justice Young but it was not read to Justice Campbell.  That affidavit was sworn, I think, on 13 February 2001 and on page 62, line 20 he said:

I refer to paragraph 27 of Mr Park’s affidavit.  I do not know what Mr Wills told Mr Park.  I did not require any purchaser to take possession of the farm and I had not told Mr Wills that this was a requirement of sale.

That affidavit did not go into evidence before Justice Campbell.  You will see that from page 121, line 55.  The only affidavit of Mr Brothers which was read was dated 20 September 2002 and in any event Justice Campbell made a specific finding that Park was told this by Mr Brothers.  That is at volume 2, page 938, line 10:

The real estate agent told him that Mr Brothers had been very ill, that he had had a series of heart attacks and was unable properly to look after the farm, and that he required a purchaser to immediately take possession of the farm to look after it.

So that is one of the findings which the respondents embrace in their submissions as being a finding of fact which need not trouble your Honours. 

In my submission, it is further evidence combined with all the rest that – well, it is as clear as burning daylight that Mr Brothers would have consented and would have designated or approved the areas, had he not repudiated the contract.  In my respectful submission, the first question is is the approval issue a new point.  We submit by any conventional test it is a new point.

Question two, should it have been raised for the first time on appeal?  We say, no, it should not have been allowed because of the reasons we have articulated and because of the authorities which create an impediment to it being allowed on appeal.  Had the point been taken when it should have been taken the case would have been differently pursued and it is too late to try and undo all that now.  We do not ask your Honours to remit this to the Supreme Court of New South Wales.  We ask your Honours to find that Justice Campbell was right, the Court of Appeal was wrong and his judgment should be restored.

GLEESON CJ:   What was the date stipulated for completion?

MR BARKER:   7 December 2000.

GLEESON CJ:   From one point of view – I would be interested to hear your comments on this – there is an element of artificiality about this entire issue in this sense, that if it had not been for the dispute that arose between the parties that resulted in the exclusion in mid‑December, so far as I understand the evidence, there is no reason to doubt that the contract would have been completed on or about the date stipulated for completion, so that the dispute that resulted in the exclusion was also the dispute that resulted in the non‑completion of the contract on the specified date and if the contract had been completed on the specified date no question of approval with respect to whatever needed to be done for the 2001/2002 rice crop would ever have arisen.

MR BARKER:   That is right.  Litigation would have unhappily been avoided, happily from the party’s perspective.

GLEESON CJ:   The argument that the loss of profits in relation to the 2001/2002 crop were not the consequence of a breach of special condition 24 but were, if anything, a breach of failure to complete on the stipulated date perhaps needs to be related to the consideration that in practice the failure to complete on the stipulated date and the exclusion of the purchases from the property in mid-December were just two sides of the one coin.

MR BARKER:   If there had been merely delay in settlement without any repudiation or ejectment, well Park could have done the work but he was - I mean what happened was the contract is repudiated; he is tossed off the property and kept off it during a time when the contract was on foot.  Now, that is why we say that special clause 24 obtained right through that period because the contract was still on foot even though one side had repudiated it.

GLEESON CJ:   But at that stage he was not seeking approval to do the work because Mr Brothers might have been right.  There was a live issue between the parties that was subject of litigation and if Mr Brothers had been right about that issue then for the same reason as he did not apply to the Department for approval - he was not going to apply to Mr Brothers for approval to spend money on capital works on Mr Brothers’ property at a time when Mr Brothers was maintaining before the courts that he had the right to exclude him.

MR BARKER:   But he was nonetheless being excluded.

GLEESON CJ:   Yes, it may be ‑ ‑ ‑

MR BARKER:   Whatever the force of what your Honour says, in my submission, the findings of the courts below have left it behind.  This was not argued.

GLEESON CJ:   No.

MR BARKER:   I am indebted to your Honours.

GLEESON CJ:   Thank you Mr Barker.  We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 3.32 PM THE MATTER WAS ADJOURNED