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Trevilyan v Donaldson

Trevilyan v Donaldson

Case [1997] SASC 6502 23 December 1997

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TREVILYAN v DONALDSON & ANOR

Magistrates Appeal
Olsson J

Introduction

The appellant, who was defendant at first instance, appeals against a judgment entered against him on 27 October 1997 by a stipendiary magistrate. By that judgment the appellant was required to pay the respondents $25,225.60 plus interest, being moneys held to be payable to them in terms of an agreement made between the parties.

The notice of appeal raises a number of separate issues, but it is convenient to identify and discuss them later in these reasons.

The facts

The appellant is the duly appointed legal personal representative of Edward Clyde Trevilyan deceased. In that capacity he was, at all material times, the owner of a dairy farm (known as No.1 Dairy) and herd of some 300 cows, located in what I take to be the Myponga area. He testified that he, personally, was a farm manager of some 15 - 20 years’ experience.

He was introduced to the respondents in July 1995 by one Handscombe - a farm consultant who had advised both parties in relation to their separate dairy activities.

As I understand the evidence it was to the effect that the appellant, who was personally involved in the conduct of other farming activities, urgently needed assistance in the conduct of No.1 Dairy. This was being run by the appellant and a farm hand called Stacey.

Following their introduction the parties entered into a written share farming agreement (“the Agreement”) which seems to have been drawn up by, or with the involvement of, Handsombe. As the learned magistrate recognised, this was a document which was as noteworthy for its obscurity and ambiguity, as it was for its relative brevity.

As that document is both short and also critical to a consideration of the issues arising between the parties I will reproduce it in full. It reads as under:

“DAIRY SHARE FARMING

BETWEEN
ROGER TREVILYAN - FARM MANAGER
ON BEHALF OF ESTATE E.C. TREVILYAN
AND
GRAHAM & RICKI DONALDSON - SHARE FARMERS

AGREEMENT TERM - 5 years from 1st June 1995
The agreement to be reviewed on 31st January 1996 and then annually on 31st January. This agreement can be terminated with three months notice from either owner or share farmer. If terminated within 12 months monthly payment will be based on average monthly milk returns for the previous twelve months.
As herd numbers increase the agreement will become more performance oriented with increased sharing of costs.
RESPONSIBILITIES
SHARE FARMERS AND OWNERS WILL DEVELOP AND AGREE ON A FARM DEVELOPMENT PLAN BY 31ST JANUARY 1996
OWNERS
·...... Owners receive 80% milk sales.
·      Owners receive proceeds from dairy stock sales and any increase in dairy stock numbers.
·...... Owners provide fully equipped to dairy Authority standards.
·      Owners will provide a house rent free to an agreed standard.
·...... Owners supply at least 300 milking cows from 31st January 1996.
·      Owners to supply at least 80 heifers per annum with an average pre calving weight…

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 Trevilyan v Donaldson

Details

AGLC: Trevilyan v Donaldson [1997] SASC 6502
Case: [1997] SASC 6502
Decision Date: 23 December 1997

CaseChat Overview and Summary

The appeal was brought by the appellant, Roger Trevilyan, the legal personal representative of Edward Clyde Trevilyan deceased, against a judgment entered against him by a stipendiary magistrate. The respondents, Graham and Ricki Donaldson, were awarded $25,225.60 plus interest, which they claimed was payable under a share farming agreement. The appeal was based on the argument that the respondents breached a fundamental term of the agreement by failing to maintain somatic cell counts below the statutory maximum, which entitled the appellant to rescind the agreement. The appeal also argued that even if the agreement was not rescinded, the respondents were entitled to less than the awarded amount.

The court had to determine whether the failure of the respondents to maintain somatic cell counts below the statutory maximum constituted a breach of a fundamental term of the agreement. The court also had to decide whether the appellant effectively exercised his right to rescind the agreement and whether the respondents were entitled to the awarded amount.

The court found that the obligation of the respondents to maintain total somatic cell counts below the statutory maximum was an essential or fundamental term of the agreement. However, the court also found that the appellant did not cooperate completely in achieving fulfillment of a proper remedial management regime. The court concluded that the appellant could not be heard to complain of fundamental breach by the respondents and seek to rely on it as a basis for rescission of the agreement. The court further found that the appellant's notice of termination was inconsistent and ineffective as a lawful exercise of election to rescind. The court held that the appellant became liable to pay the respondents for the month of January and also make proper monthly payments for a period of three months thereafter.

The appeal against the judgment on the respondents' claim will be allowed for the purpose of substituting for the specified judgment sum an amount of $23,409.40 plus interest and costs. The appeal in relation to the counterclaim must be dismissed.

Orders