Pegasus Leasing Limited (Respondent) v Cadoroll Pty Ltd, Cadoshare Pty Ltd, Southern Plumbing Supplies Pty Ltd, Griffin and Bayaci Pty Ltd, Weiss, Ryding, Blizard and Waltrame Pty Ltd, Integrity Insurance Pty Ltd,

[1994] SASC 4570

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MOHR(2) AND NYLAND(3) JJ

CWDS
Contracts - Construction and Interpretation of Contracts - Thoroughbred Bloodstock Lease - whether particular foal a leased thoroughbred title to which remained in lessor or whether progeny of mare title to which passed to lessee - appeal against judgment in favour of lessor dismissed.

Practice - Summary Judgment - 5CR 25 - applicable in circumstances of urgency even if serious issue to be tried where matter capable of expeditious disposal. Settlement Wine Co Pty Ltd v National and General Insurance Co Ltd
(1988) 146 LSJS 150 at p.152 and Lawrence v Griffiths (1987) 47 SASR 455 at p.463, applied.

HRNG ADELAIDE, 11 April 1994 #DATE 7:6:1994

Counsel for appellants Cadoroll
Pty Ltd and Ors:   Mr N L Strawbridge with
   Ms R J Batt

Solicitors for appellants Cadoroll
Pty Ltd and Ors:   Baker O'Loughlin

Counsel for respondent:             Ms C M Branson QC

Solicitors for respondent:         Kelly and Co

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a judgment of Debelle J whereby he allowed an appeal against the decision of a Master refusing to enter judgment on an application under Rule 25 for the return to the plaintiff of a thoroughbred racehorse named "Welsh Miner".

2. The issue between the parties relates to the construction of a thoroughbred bloodstock lease to which the plaintiff (the lessor) the defendants (the lessees) and a Manager are parties. The question is whether, upon the true construction of the lease, Welsh Miner is the property of the plaintiff or the defendants.

3. The relevant provisions of the lease have been stated and analysed in the judgment appealed from and it would be pointless to repeat that exercise. I agree entirely with the learned judge's analysis and reasoning. He has dealt fully and convincingly with the arguments addressed to him. The same arguments were addressed to us and it is necessary only to adopt the learned judge's comments upon them. It is really unnecessary to add anything further, but I shall state very briefly my approach to the issue, which I think can be disposed of quite shortly.

4. Clause 5.1 of the lease provides that the leased thoroughbreds remain the property of the lessor, but the progeny of the mares which are included in the leased thoroughbreds become the property of the lessees. "Leased Thoroughbreds" are defined to mean those specified (the place where they are specified is misstated) and the definition expressly states that the expression "shall include the Foals". The lease therefore contemplates expressly that foals may be included as leased thoroughbreds, the title to which remains in the lessor. The colt which is included in the list of "Leased Thoroughbreds" is conceded to be identical with Welsh Miner.

5. The only real argument offered in favour of Welsh Miner being the property of the defendants was that he was included in the expression "the progeny ... of the mares" in Clause 5.1. In one sense, of course, any horse foaled by a mare at any time can be described as her progeny. Clearly, however, that is not the meaning in this clause. The progeny which are to become the property of the lessees cannot include foals whenever thrown. It cannot apply to foals thrown prior to the commencement of the lease. That is made plain by the definition of "Leased Thoroughbreds".

6. It is also made plain by the definition of "Foals" which distinguishes between foals which are included in the list of leased thoroughbreds, and "the progeny of the Mares".

7. In my opinion Welsh Miner was a leased thoroughbred and remains the property of the plaintiff. The defendants' obligation pursuant to Clause 12.1 was to return the horse to the plaintiff at the expiration of the lease on 29th July 1992, to be offered for sale. They failed to do so. To my mind the plaintiff was clearly entitled to the judgment entered by Debelle J.

8. It was argued that that judgment should not have been entered on a Rule 25 application as there is a reasonably arguable case in answer to the plaintiff's claim. I do not think that there is a serious issue to be tried. The case turns on the construction of the lease and that, to my mind, is clear. Be that as it may, Rule 25 is available to dispose of cases, even where there are serious issues, where those issues are capable of speedy resolution without lengthy hearing, and circumstances of urgency justify that course; Settlement Wine Co Pty Ltd v National and General Insurance Co Ltd
(1988) 146 LSJS 150 at p.152; Lawrence v Griffiths (1987) 47 SASR 455 at p.463.

9. There are circumstances of urgency in the present case. Instead of being dealt with pursuant to Clause 12.1, the horse is being raced and decisions as to his career are being made by the lessees. I agree with what Debelle J has said on this point. The only issue in the case was fully argued before us. There is every reason of justice and convenience why this Court should finally dispose of the case.

10. I would dismiss the appeal.

JUDGE2 MOHR J I agree with the decision of King CJ in this matter.

JUDGE3 NYLAND J I agree.