Park v Murray Irrigation Ltd

Case [2018] NSWCA 166

Court of Appeal


Supreme Court


New South Wales

  • Summary available
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Medium Neutral Citation: Park v Murray Irrigation Limited [2018] NSWCA 166
Hearing dates: 20, 21 June 2018
Decision date: 02 August 2018
Before: Bathurst CJ at [1];
Leeming JA at [2]
Sackville AJA at [3]
Decision:

1.    Appeal dismissed;
2.    Appellant to pay the respondent’s costs of the appeal.

Catchwords:

CONTRACT – contractual arrangements between an irrigation corporation and an irrigator – irrigator entitled to separate water entitlements (WEs) and delivery entitlements (DEs) – whether corporation’s unilateral changes to Policies so as to require a transferor of WEs to surrender DEs and pay termination fees constituted a breach of contract

 

UNCONSCIONABLE CONDUCT – whether corporation’s actions in changing the Policies constituted unconscionable conduct in contravention of s 51AC of the Trade Practices Act 1979 (Cth)

  DAMAGES – whether the irrigator, had he established a breach of contract, was entitled to damages equivalent to the termination fees he paid to the corporation – whether the irrigator showed that had the (assumed) breach not occurred he would have received a higher net sale price for his WEs
Legislation Cited:

Australian Consumer Law (Sch 2, Competition and Consumer Act 2010 (Cth)), s 21
Corporations Act 2001 (Cth), s 140(1)
Trade Practices Act 1974 (Cth), s 51AC
Water Act 2007 (Cth), s 92
Water Charges (Termination Fees) Rules 2009 (Cth)

  Irrigation Corporation Act 1994 (NSW), ss 19, 30, 36, 38, 39, 48, 74
Water Management Act 2000 (NSW), ss 15, 371(1), 401, 403, 116, 117, 119, 120, 122, 123
Cases Cited: Boucher v Murray Irrigation Ltd; Pratt v Murray Irrigation Ltd; Park v Murray Irrigation Ltd [2017] NSWSC 1268
Browne v Dunn (1893) 6 R 67
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Fox v Percy (2003) 214 CLR 118
Hole v Garnsey [1930] AC 472
Ipstar Australia Pty Ltd v APS Satellite Pty Ltd [2018] NSWCA 15
Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1; [2006] FCAFC 144
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Paciocco v Australian & New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28
Paciocco v Australian and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50
PT Ltd v Spuds Surf Chatswood Ltd [2013] NSWCA 446
Re Golden Key [2009] EWCA Civ 636
Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379; [1993] HCA 40
Robinson v Harman (1848) 1 Ex Rep 850
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550; [2016] HCA 22
Ruthol Pty Ltd v Tricon (Australia) Pty Ltd [2005] NSWCA 443; 12 BPR 23,923
Tabcorp Holdings Pty Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272
Category:Principal judgment
Parties: James Scott Park (Appellant)
Murray Irrigation Limited (Respondent)
Representation:

Counsel:
Mr D Pritchard SC / Mr…

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AGLC
Park v Murray Irrigation Ltd [2018] NSWCA 166
Case
[2018] NSWCA 166
Decision Date

CaseChat Overview and Summary

The dispute in *Park v Murray Irrigation Ltd* concerned contractual arrangements between Murray Irrigation Ltd (the respondent) and an irrigator, Mr Park (the appellant). Mr Park was entitled to separate water entitlements (WEs) and delivery entitlements (DEs). The core of the dispute was whether the respondent's unilateral changes to its Policies, which required a transferor of WEs to surrender DEs and pay termination fees, constituted a breach of contract. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine two primary legal issues. First, whether the respondent's amendments to its Policies, which imposed new conditions on the transfer of WEs, amounted to a breach of the contractual arrangements between the parties. Second, the Court considered whether the respondent's conduct in changing the Policies constituted unconscionable conduct in contravention of s 51AC of the *Trade Practices Act 1974* (Cth). Ancillary to these issues, the Court also considered whether Mr Park, had he established a breach of contract, would have been entitled to damages equivalent to the termination fees paid, and whether he had demonstrated that the assumed breach would have resulted in a higher net sale price for his WEs.

The Court of Appeal dismissed the appeal. It found that the respondent's actions in amending its Policies did not constitute a breach of contract. The Court reasoned that the contractual terms, when properly construed, permitted the respondent to make such changes. Furthermore, the Court found that the respondent's conduct did not amount to unconscionable conduct under s 51AC of the *Trade Practices Act 1974* (Cth). Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed;

2. Appellant to pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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