Park & Anor v Brothers

[2005] HCATrans 294

[2005] HCATrans 294

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S305 of 2004

B e t w e e n -

LINDSAY GORDON PARK

First Applicant

JILL PARK

Second Applicant

and

CLIVE ROY BROTHERS

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 APRIL 2005, AT 9.35 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR D.H. MURR, SC, for the applicant.  (instructed by Holman Webb)

MR B.A.J. COLES, QC:   May it please the Court, I appear with my learned friend, MR A.G. ROGERS, for the respondent.  (instructed by D.G. Skinner & Associates)

GUMMOW J:   We would be assisted if we heard first from you, I think, Mr Coles.

MR COLES:   If your Honours please.  Your Honours, the short point, as we would understand it, raised by the application is whether a new point was taken in the Court of Appeal.  Our response to that very shortly is that at the trial on the pleadings, such as they were, all matters were put in issue.  The argument apparently before the trial judge was of a limited and relatively content-free kind.  That perhaps overstates the position on one view.  When then attention was drawn to the simple failure of the plaintiff to properly identify and establish ‑ ‑ ‑

GUMMOW J:   I would not have thought Justice Campbell missed much actually.

MR COLES:   But the case, your Honour, simply was one where the plaintiff at trial failed to prove its case.  That was pointed out in the Court of Appeal.  That was an issue alive on the defence as filed, such as it was, and therefore does not qualify for the description “a new point”, in our respectful submission.  It is very like, as Justice Giles pointed out in the Court of Appeal, this Court’s decision in Banque Commerciale v Akhil, the only difference being that in that case the defendant did not turn up at all at the trial, but was in the Court of Appeal entitled to rely on the issues raised by its notice of grounds of defence.

That is the substantial difference.  So, therefore, the question before this Court becomes simply this.  Does the fact that the defendant turned up and, albeit howsoever inadequately, was represented at the trial at first instance?  Does that make any difference?  The answer would be yes, if and only if there was something done at that trial which abandoned, resiled from, qualified or in some way discharged reliance upon the pleaded grounds of defence, and it is not suggested that that happened.  They are our submissions, if your Honours please.

GUMMOW J:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, may I deal first with the matters just raised by our learned friend.  The Court of Appeal said at page 90 of the application book, paragraph 91 that the circumstances were like those of Akhil.  Your Honours, in Akhil of course, the bank was not represented at the trial and took no active part in it.  Here the respondent was represented at the trial by a legal practitioner who conducted the case in such a way that, in our submission, there was no hint this was a matter in issue.

Your Honours will see at page 89 of the application book at paragraphs 86 to 88 what took place at the trial.  There was no reference to the point, the issue was never raised, the issue was never addressed and the points – and the best one can say about it is that there remained a document, I suppose, which were the points of defence.  But of course Akhil has two aspects.  One aspect is that that was a case where there was no representation.  The second aspect is that the way in which litigation is conducted can be affected by the way a case is conducted at trial.  One would have thought, your Honours, that if this point was to be a matter which was in issue, then it was appropriate to raise it.

Your Honours will see the primary judge dealt with all the issues that were raised before him and, your Honours, it is a matter where, in our submission, if it had been made apparent that this aspect was one where a point was being taken, it is one where evidence might have been taken, might have been adduced, directed specifically to the point and also, your Honours, where other courses might have been taken.  We refer ‑ ‑ ‑

GUMMOW J:   Is there any consideration by the Court of Appeal of that point you have just made?

MR JACKSON:   Well, your Honour, of the point about evidence being called?

GUMMOW J:   Yes.

MR JACKSON:   There does not appear to be, your Honour.  The court had a twofold view ‑ ‑ ‑

CALLINAN J:   There would have to be evidence on the point, Mr Jackson, would there not?

MR JACKSON:   Yes except, your Honour, that the view taken by the Court of Appeal was essentially this, that because the parties at the point where the planting and work going towards planting might have taken place for the 2001/2002 crop was at a time when we were being excluded from the land, therefore in those circumstances, whatever we had suggested would have been knocked back.  What I was going to say to your Honours was just this.  If one goes – that view is one so that evidence did not matter; we would have been knocked back whatever happened.

CALLINAN J:   Mr Jackson, would there not have been an obligation, as there is on every party to a contract, to act in such a way as to bring it into effect?  I mean, St Martins Investment Trust.

MR JACKSON:   Of course, your Honour.  But not just that, is the point I was going to make.  In addition, if one goes to the supplementary application book where the terms of the contract are set out, and in particular if one goes to page 25 of that book, you will see that part of the additional security to be given – this is clause 29 – for the fact that some of the purchase price, a large part, was not payable until the expiration of some time, was that there was to be a security given over the 2001/2002 rice crop.  So to do that you have to be able to grow a rice crop.

Now, your Honours, if there was to be that as part of the security, then even though the contract was at a point where it had not been completed, then one would think that carried with it an implied obligation to do whatever was necessary to allow at least that.

CALLINAN J:   Well, I would have at thought, at least arguably, you did not need that.  Parties are bound to act in good faith, as it were, in performing the obligations.  Would there be any commercial reason which would justify the vendors in refusing to accede to the nomination of appropriate areas, quite apart from what you put, which is the matter of security?

MR JACKSON:   Well, it is very difficult to see, your Honour, because one had a representation, for example, in the material which you will see at the top of page 2 of the supplementary application book, that there were 2,140 acres approved for rice production with a further 2,000 bored.  There is a map which is at page 37 of the supplementary application book, part of the contract, showing the areas available for rice.  It has not come out too well in the colours but I can give your Honours better copies if your Honours want them.  It is very difficult to see, with respect, any reason why it would not have been done, apart from just a desire not to do it.

CALLINAN J:   I do not understand myself, I must say, how the Court of Appeal concluded against you on the substantive issue either.

MR JACKSON:   Your Honour, the way in ‑ ‑ ‑

CALLINAN J:   These just seem simply to have been that the vendors would not have allowed you possession of the areas that you wanted to work up.

MR JACKSON:   Yes, your Honour.  It is paragraph 74, page 84, where they say “there was contractual rigidity”.

CALLINAN J:   What does that mean?

MR JACKSON:   Well, it just means that each - your Honour, what they seem to have treated it as meaning is that each party was standing on their “rights”.

CALLINAN J:   Well, if they were - as you say, what rights?

GUMMOW J:   It begs the question.

CALLINAN J:   What about obligations?

MR JACKSON:   Your Honour, the correlative does not appear to have been addressed specifically.  If one goes to page 86, there is a discussion – commencing, I am sorry, at page 85, paragraph 76 which goes through to page 88, paragraph 83.  The court held – I should say that neither the doctrine of prevention of completion of a condition precedent nor the principle that a person could not take advantage of his own wrong was applicable, and then at page 88 at about line 25 they said even if those principles applied:

In either case there was no more than the dispensation with proposal of locations already considered; there was no wrongful refusal of approval ‑ ‑ ‑

CALLINAN J:   Mr Jackson, there is – I have forgotten the name of it now – a Queensland case that came here about subject to finance, and it was held ‑ ‑ ‑

MR JACKSON:   Yes.

CALLINAN J:   I have forgotten the name of it now.  You know the case I mean?

MR JACKSON:   I was in it at the trial, your Honour.

CALLINAN J:   Parties had to act in good faith in seeking finance, even though it was in their discretion as to whether it was acceptable or not.

MR JACKSON:   Yes.  The case about the gas, your Honour.

CALLINAN J:   Yes.

MR JACKSON:   The pipeline.  I just cannot think of the name of it at the moment.  Let us say one had to act bona fide.  Your Honours, essentially, in our submission, it is a case where the interests of justice would merit the grant of special leave in the particular case.  I do not think I can add to our submissions beyond that.

GUMMOW J:   Thank you.  Mr Coles.

MR COLES:   Briefly, if your Honours please.  The proceedings in the court below do not seem to have been conducted upon the basis that there was any pleading at all sustained with contention that the vendor was in breach of an obligation to grant consent or was not entitled to withhold consent.  The Court of Appeal found - the trial judge having made no particular finding on that issue - it discharging its duty to rehear the matter, that the facts showed that the vendor would not have ‑ ‑ ‑

CALLINAN J:   But the facts were not properly ventilated.  How could they have been?

MR COLES:   This of course was an issue upon which the plaintiff at trial bore the burden of proof, and the facts did not disclose that the ‑ ‑ ‑

CALLINAN J:   The plaintiff may have discharged that simply by showing that your client was in breach and was, to use the Court of Appeal’s expression, contractually rigid and would not have permitted the purchasers to do anything anyway.

MR COLES:   Yes, but there has been no finding, either sought or obtained in the courts below, that the vendor had any obligation to supply the consent.  He could withhold it at will.

CALLINAN J:   No – well, it is subject ‑ ‑ ‑

MR COLES:   It was not, in short, one of those situations ‑ ‑ ‑

CALLINAN J:   It is subject to an obligation to do everything reasonably necessary to carry the contract into effect, including clause 24.

MR COLES:   But the contract of course was a contract for sale, not a contract for the grant of a right to grow a rice crop, in our respectful submission.

CALLINAN J:   It may have been that as well.  Why not?

MR COLES:   May we respectfully say, in a case which involves whether new points were taken or not in the Court of Appeal, that would be a new point taken in this Court, in our respectful submission.

CALLINAN J:   Well, it might have to go back for retrial, and that may be the fault of the person who pleaded your client’s case, and who made what, the 12 – was it 12‑line submission or something at the end?

MR COLES:   Eleven, I think, your Honour.

CALLINAN J:   Eleven lines of submissions to the trial judge.  That was a lot of help.

MR COLES:   I do not think it was any help at all, your Honour.

CALLINAN J:   No.

MR JACKSON:   Apart from what else appears in our written submissions which your Honours have read, I think there is nothing I can add for the purposes of this morning’s submissions.

GUMMOW J:   Thank you, Mr Coles.

There will be a grant of special leave in this matter.  It will be a one day appeal, gentlemen.

AT 9.47 AM THE MATTER WAS CONCLUDED