Trevilyan v Donaldson

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 The appeal also argued that even if the agreement was not rescinded, the respondents were entitled to less than the awarded amount.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.