Trickey v Ewert

[2020] NSWSC 691

Supreme Court

New South Wales

Medium Neutral Citation:	Trickey v Ewert [2020] NSWSC 691
Hearing dates:	30 April 2020
Decision date:	04 June 2020
Jurisdiction:	Equity - Real Property List
Before:	Robb J
Decision:	See pars [65] to [69]
Catchwords:	LAND LAW — Conveyancing — Contract for sale — Completion – where the plaintiffs seek an order that the defendants give vacant possession of a property – where the defendants did not have any defence – order made
Legislation Cited:	Irrigation Corporations Act 1994 (NSW)
Category:	Principal judgment
Parties:	Brian Ronald Trickey (first plaintiff) Fay Leanne Trickey (second plaintiff) Kimberley Mary Ewert (first defendant) Wayne Monson (second defendant)
Representation:	Counsel: L Chapman (plaintiffs) K Ewert (self) (defendants)   Solicitors: Glowreys – The Riverina Law Firm (plaintiffs)
File Number(s):	2019 / 94224

Judgment

1. The plaintiffs in these proceedings are Mr Brian Ronald Trickey and Ms Fay Leanne Trickey.

2. They are the owners of a rural property located at Finley in this State (the Farm).

3. On 26 March 2019 the plaintiffs commenced these proceedings by filing a statement of claim. There were three defendants, who were respectively Kimberley Mary Ewert, Wayne Monson and Fay Tatt.

4. Ms Ewert is the principal defendant. Mr Monson is the partner of Ms Ewert. Ms Tatt is Ms Ewert's mother.

5. As I understand it, the plaintiffs joined Mr Monson and Ms Tatt as defendants because the plaintiffs seek an order for vacant possession of the Farm, and Mr Monson and Ms Tatt were understood to be occupiers of the Farm. Subsequently, the proceedings were discontinued against Ms Tatt.

6. By their statement of claim, the plaintiffs seek the following relief:

1.   Judgement for the Plaintiffs for possession of the [Farm].

2.   Declaration that the Defendants have since the 5th of March 2019 been trespassing on the [Farm].

3.   Order that the Defendants are to give the Plaintiffs vacant possession of the [Farm] within 48 hours of entry of these Orders.

4.   That the First Defendant cause Caveat AM94572 to be withdrawn immediately.

5.   Damages.

6.   Costs

7. Counsel for the plaintiffs observed in his final written submissions that while the claim for damages is pressed, "given the apparent impecuniosity of the defendants, the ultimate utility of that aspect of the case is possibly doubtful. The same might be said about any costs orders in the event that the plaintiffs succeed to judgment". Although the plaintiffs continue to seek damages, they do not in their submissions appear to have explained how the Court should quantify the damages to be awarded.

8. The remaining defendants filed defences on 23 April 2019. Those pleadings appear to have been drafted by the defendants personally.

9. By leave of the court granted on 14 November 2019, Ms Ewert filed an amended defence. The amended defence was clearly drafted by a lawyer, although it was not filed by a solicitor.

10. The plaintiffs filed a reply on 23 January 2020.

11. On 27 February 2020, the plaintiffs filed a notice of motion in which they sought an order that the amended defence filed on 14 November 2019 be struck out, and that judgment be entered for the plaintiffs accordingly. The notice of motion sought an order vacating the hearing that was fixed to take place before me on 30 April 2020.

12. As it happened, the notice of motion was ultimately listed to be heard by me on the same date as the principal proceedings. The plaintiffs were represented by counsel and the first and second defendants represented themselves. Ms Ewert, as the principal defendant, conducted the hearing on behalf of the defendants. It was necessary to conduct the hearing by telephone due to the present pandemic.

13. With the agreement of the plaintiffs, the Court did not deal with their notice of motion. It was more sensible for the Court to deal with the whole of the proceedings on the merits, as those proceedings were fixed for final hearing. That was the better course, because otherwise there was a risk that if the Court entered judgment in favour of the plaintiffs on a summary basis, the hearing would be wasted if on appeal the view was taken that it was not proper for the Court to strike out the amended defence.

14. Accordingly, the hearing proceeded on a final basis.

15. This is an unfortunate case, because at the end of the day it was clear that the defendants did not have any defence and had never had one. The plaintiffs have suffered considerable delay in regaining possession of the Farm, and it is obvious from the court book that they have been put to considerable expense.

16. The Court understands that for a period Ms Ewert received pro bono assistance by counsel. Counsel withdrew from the proceedings shortly before the hearing.

17. The evidence that was filed was quite complex, but at the end of the day, it will not be necessary for the Court to refer to and analyse all of the evidence in detail.

18. The most convenient course will be for the Court to identify the issues for determination in a formal way by analysing the parties' pleadings. References to paragraph numbers below are to the paragraphs in the statement of claim unless the contrary is stated.

19. Ms Ewert admits that the plaintiffs are the registered proprietors of the Farm: par 1.

20. Ms Ewert also admits that she entered into a contract for the sale and purchase of the Farm on 23 December 2016: par 2.

21. However, in par 2 of her amended defence, Ms Ewert alleges certain representations were made to her before she entered into the contract "as to the terms of the acquisition takeover date and special conditions to be included within the Contract". She also alleges that the contract was not consistent with the representations.

22. The particulars of the representations given by Ms Ewert refer to pages 16 and 17 of the affidavit of Ms Trickey dated 19 July 2019. Those pages appear to be a document prepared by the real estate agent containing the details of the parties, their solicitors and the principal terms of the proposed contract (the sales advice).

23. Ms Ewert alleges that the contract was not consistent with the representations by reference to Annexure C to Ms Trickey's affidavit. That annexure is the contract of sale dated 23 December 2016.

24. Unfortunately, the amended defence does not identify with any precision which parts of the sales advice were inconsistent with the contract that the parties entered into. The inconsistencies relied upon have not subsequently been identified. The Court must infer that Ms Ewert read the contract before she signed it. The Court cannot find that there was some actionable misrepresentation that gave rise to legal rights in Ms Ewert solely by comparing the sales advice and the contract. Parties are generally free to negotiate terms of the contract that differ from those originally contemplated and recorded in the agent's sales advice.

25. Ms Ewert admits the allegation in par 3 that the effect of special condition 12 and standard condition 18 of the contract was to entitle Ms Ewert to possession of the property as licensee. She alleges in par 3 of the amended defence, however, that she entered into possession prior to the date of the contract on about 15 September 2016; and that the terms pleaded by the plaintiffs applied to the period of occupation prior to completion; but she alleges that she was not provided with possession of the Farm in a manner consistent with special condition 15 in a way that enabled her to properly exercise her rights as licensee until the completion date

26. Special condition 15 of the contract provides:

15.   Authority and Order of MIL Water

The vendor must:-

15.1   arrange the transfer of the 189 Class C Water Entitlements ("the water entitlements") from Landholding E343E as soon as possible;

15.2   within 14 days of the transfer of the water entitlements in accordance with Clause 15.1, lodge a MIL Form 15 Authority ("the Authority") for Landholding E343E authorising the purchaser to order water;

15.3   prior to the Authority being lodged at MIL, order water on behalf of the purchaser when requested to do so;

15.4   provide a Tax Invoice to the purchaser for all water which is ordered in accordance with Clause 15.4.

27. Ms Ewert did not provide particulars of the alleged breaches by the plaintiffs of special condition 15.

28. Ms Ewert admits that Mr Monson is her partner: par 4. She also admits that Ms Tatt, against whom the proceedings have been discontinued, is her mother: par 5.

29. In her amended defence, Ms Ewert does not admit that the defendants have been in possession of the Farm at all material times from 23 December 2016: par 6. She repeats the allegation concerning the existence and effect of special condition 15 of the contract. She says that she took possession of the Farm on about 15 September 2016 and that she has been in possession at all times after that date. The effect of this pleading seems to be that Ms Ewert admits that she alone has been in possession of the Farm since about 15 September 2016.

30. Ms Ewert admits that, in accordance with special condition 12 of the contract, her right to occupy the Farm as licensee is subject to her not being in default of any obligation in the contract: par 7.

31. She also admits that the contract required Ms Ewert to complete the purchase on 14 October 2018, which was, by agreement, extended to 21 January 2019: par 8.

32. Ms Ewert does not admit the allegation in par 9 that she was not able to settle the matter and therefore settlement was not effected. She pleads in her amended defence that she has the necessary funds available to complete the contract in accordance with its terms.

33. Ms Ewert admits that on 8 February 2019 her solicitor was advised by the plaintiffs' solicitor that, if she did not settle the matter by 25 February 2019, the property would need to be vacated: par 10.

34. The amended defence also admits the allegation in par 11 that on 5 March 2019 her solicitor was advised that Ms Ewert should vacate the Farm in accordance with special condition 12(x).

35. That special condition of the contract provides:

12.   Purchasers Possession Prior to Completion

Provided the Purchaser is not in default in respect of any obligation pursuant to this Contract, the Purchaser shall have a right to occupy the property as licensee from the date of unconditional exchange of Contracts until the completion date subject to the following provisions:-

…

(x)   In the event of default by the Purchaser in respect of any of the Purchaser's obligations, the licence hereby granted is automatically revoked, without the need for notice to be served by the Vendor on the Purchaser and the Purchaser shall immediately vacate the property.

36. Ms Ewert admits that on 6 March 2019, a notice of termination was served on her solicitor: par 12. However, in par 12 of her amended defence Ms Ewert pleads:

12.   In answer to paragraph 12 of the Statement of Claim the First Defendant:

(a)   says that the issue by the Plaintiffs of a Notice of Termination of the Contract for Sale of Land on 6 March 2019 constituted a repudiation of the Contract for Sale of Land;

(b)   says that she ratifies the Contract for Sale of Land and agrees that she continues to be bound by it in accordance with its terms and is ready willing and able to complete the Contract for Sale of Land;

(c)   says that the conduct of the Plaintiff's by themselves their servants and agents after 6 March 2019 is a continuing repudiation of the Contract for Sale of Land which the First Defendant says that she ratifies the Contract for Sale of Land in accordance with its terms;

(d)   says that in the circumstances outlined and by reason of the conduct of the Plaintiffs the Plaintiffs would not (sic) in a position to terminate the Contract for Sale of Land as they purported to do on 6 March 2019:

(e)   otherwise admits the paragraph.

37. The amended defence does not contain any allegations of fact capable of constituting a repudiation of the contract by the plaintiffs, other than the act of termination of the contract. Ms Ewert has not pleaded the basis of her claim that the plaintiffs were not entitled to terminate the contract on 6 March 2019. In any event, by her amended defence she has purported to affirm the contract.

38. It seems that Ms Ewert has taken the approach that she has in her amended defence on the basis that she has had available the funds necessary to complete the contract and she wishes to do so.

39. The contract provides for completion on 14 October 2018 by reference to clause 15. That clause provides:

15   Date for completion

The parties must complete by the date for completion and, if they do not, a party can serve a notice to complete if that party is otherwise entitled to do so.

40. It will be sufficient to note for the moment that the statement of claim does not allege that the plaintiff served a notice to complete on Ms Ewert. Paragraphs 10 and 11 only allege that Ms Ewert was required to vacate the Farm in accordance with special condition 12(x) because her licence that entitled her to possession of the Farm prior to completion had terminated.

41. The relief claimed by the plaintiffs comprises only judgment for possession of the Farm, a declaration that since 5 March 2019 the defendants have been trespassing on the Farm; and an order that the defendants are to give the plaintiffs vacant possession of the Farm.

42. The plaintiffs' entitlement to the relief only depends upon them being able to establish that Ms Ewert has no right to possession by reason of the termination of the licence.

43. The plaintiffs have not sought a declaration against Ms Ewert that the contract has validly been terminated. If that relief had been sought, it would have had to be proven. This may be, for example, by showing that that they made time of the essence of the contract by serving a notice to complete, and that the failure by Ms Ewert to complete the contract on a particular date gave them a right to terminate.

44. This is a convenient place to note that, notwithstanding what has just been recorded concerning the question of the effective termination of the contract, Annexure I to Ms Trickey's 19 July 2019 affidavit is a letter from her solicitor to Ms Ewert's solicitor that enclosed a notice to complete that required Ms Ewert to complete the contract at 3 PM on Thursday 7 February 2019.

45. Although the plaintiffs did not seek a declaration that the contract had validly been terminated, they did seek an order that Ms Ewert cause Caveat AM94572 to be withdrawn immediately. That caveat is Annexure V to Ms Ewert's 19 July 2019 affidavit. The interest protected by the caveat is described as an estate in fee simple by virtue of the contract dated 23 December 2016.

46. The plaintiffs will only be entitled to an order requiring the removal of the caveat if they establish that the contract was validly terminated.

47. The plaintiffs allege in par 13 that standard condition 18.6 of the contract required Ms Ewert to vacate the property immediately upon termination of the contract. Standard condition 18.6 has that effect. Ms Ewert did not admit the allegation and repeated par 13 of the amended defence.

48. In answer to the plaintiffs' claim in par 14 that the defendants continue to occupy the Farm notwithstanding that they do not have any legal right to do so, Ms Ewert pleads that she continues to occupy the property but the other defendants "do not continue to occupy the property on a full time basis".

49. Ms Ewert then pleads the following matters in answer to the allegations in the statement of claim:

15.   Further and in answer to the entirety of the claim sought to be maintained by the Plaintiff's the First Defendant says that:

(a)   the Contract for Sale of Land was a Contract for Sale of Land entered into in relation to a property upon which a farming activity was to be carried on by her within the State of New South Wales;

(b) at the time of the entry into the Contract for Sale of Land dated 23 December 2016 the terms in the circumstances were "unjust" within the meaning of s. 7 and s. 9 of the Contracts Review Act 1980 (NSW);

Particulars

As set forth in the affidavit of Kimberley Mary Ewert sworn 11 November 2019.

(c)   the court ought, in the circumstances, order that the Contract for Sale of Land be performed in accordance with its terms and in particular:

(i)   the Plaintiffs make available at completion 608 ML of delivery entitlements from Murray Irrigation Ltd for use on the property;

(ii)   the Plaintiffs satisfy any outstanding indebtedness to Murray Irrigation Ltd;

(iii)   the property be transferred otherwise free from encumbrances.

16.   Further and in the alternative in the circumstances of the conduct of the Plaintiff's before and during the period of time within which the Contract for Sale of Land remained on foot with the representations made, the First defendant is entitled to relief against forfeiture of her entitlements under the terms of the Contract for Sale of Land so as to permit completion of that contract in accordance with its terms.

Particulars

As set out in the affidavit of Kimberley Mary Ewert sworn 11 November 2019.

50. These allegations direct attention to one of Ms Ewert's affidavits of 11 November 2019. The following is an outline of what is said in Ms Ewert's affidavit that is intended to demonstrate the nature of the claim.

51. Ms Ewert said that the Farm had associated entitlements under the Irrigation Corporations Act 1994 (NSW) with Murray Irrigation Ltd for water shares and delivery entitlements. Ms Ewert was not entitled to information associated with those entitlements until they were transferred to her, and she could only deal through Ms Trickey. Also, because she was only a licensee, she was not able to obtain ear tags for her livestock or a Vendor Declaration Book. Ms Ewert said that she believed Ms Trickey was aware of those problems from her discussions with Ms Trickey.

52. Ms Ewert said that the exchange of contracts was delayed in order to enable the plaintiffs to remove their possessions and silage from the Farm. Ms Ewert referred to an arrangement for 200 bales of silage to be left on the Farm, but this was changed to 18 to 19 ha of uncut land for Ms Ewert to graze her livestock. Before contracts were exchanged it became apparent that only 10 ha of uncut land was to be left, and the grass on that land was unusable and contained poisonous weeds. Ms Ewert was left with only two small paddocks and had to buy in hay to feed her livestock, which she had not budgeted for.

53. Ms Ewert said that Ms Trickey informed her that she would make all arrangements with Murray Irrigation Ltd. Ms Ewert said that it took 12 months for Ms Trickey to submit the necessary form. During the interim, Ms Ewert did not have any authority for dealing with the Farm's water account. Even with the authority of Ms Trickey, Ms Ewert could not get an invoice for water that she purchased from Murray Irrigation Ltd. Water had to be paid for within 24 hours of receipt of invoice, but the invoices were sent to Ms Trickey, and Ms Ewert did not receive a single invoice. Ms Ewert claimed that Murray Irrigation Ltd had advised her that it had sent to Ms Trickey the paperwork to split the water account. On 29 October 2016, Ms Trickey ordered 32 ML of water due to large rainfalls. The water was to be put on paddocks on which Ms Ewert could start growing feed for her own stock. Ms Ewert was shown how to use the water system on the farm. Ms Ewert claimed that she was led to believe that she would not have to pay for the 32 ML of water, but before the exchange of the contract she was told that she owed the plaintiffs the cost of the water. Ms Trickey threatened not to sign the contract unless Ms Ewert agreed to pay for the 32 ML of water, which Ms Ewert felt obliged to agree to. The consequence was that the Farm was 32 ML short of the water that Ms Ewert said would become available. Ms Ewert ordered 20 ML of water through Ms Trickey and paid for the water immediately. Ms Trickey subsequently told Ms Ewert that 10 ML of the water would not be made available. Ms Ewert claimed that, as a consequence, the freshly planted crop did not have adequate water for growing "and to enable me to comply with my obligations under the Contract for Sale of Land and in particular that are associated with the proper farming practices upon the Property". Consequently, in November 2016, Ms Ewert decided that she had to sell some of her cattle through Ms Trickey.

50. When Ms Ewert became aware that the contract had been exchanged on 23 December 2016, she believed that the two-year period for completion commenced from that date and not 14 October 2016. Ms Ewert became ill in February 2017, and was in and out of hospital on a number of occasions with substantial medication for immune and heart problems.

51. Ms Ewert continued to chase Ms Trickey to formalise the adjustment to water allocation entitlements. When Ms Ewert contacted Murray Irrigation Ltd to try to sort out the problem, she was advised that water was not available because her December 2016 Bill was on stop credit because of outstanding monies dating back to December 2015 owed by the plaintiffs. Ms Ewert claimed that Ms Trickey threatened her on a number of occasions to stop her water allocation. Ms Ewert was not able to water the entirety of the intended pasture and lost a big part of the crop. That resulted in a reduction in silage for her dairy herd.

52. Ms Ewert said that in the beginning of 2018 she obtained finance approval to complete the purchase of the Farm. She was hospitalised again in early 2018. In December 2018 she had available finance from "First Mortgage Investments" but had to wait for a valuer to come before a final approval could be obtained. Ms Ewert paid for the valuation but it did not come out until 23 December 2018. That was the reason for the extension in the time for completion.

53. Ms Ewert did not say that she had been offered the finance to which the valuation related. She said that she had "obtained alternative finance and, subject to the delays that have occurred believe that this can be re-established to enable me to complete the contract in accordance with its terms" (par 51). Finally, Ms Ewert said that she continued to wish to complete the contract "but have difficulties in being able to properly establish documentation to enable proper licensing and utilisation of water and sales rights attaching to livestock upon the Property without assistance of the court" (par 52).

54. Ms Ewert paid the licence fees up to February 2019 but has not paid any fees thereafter. The plaintiffs say that they have incurred council rates and charges in excess of $1,000 and water-related charges in excess of $14,000. Those payments have been for the benefit of Ms Ewert as she has remained in occupation of the Farm.

55. The plaintiffs tendered extensive evidence to answer the allegations made by Ms Ewert. It is not necessary to consider that evidence in detail. The assertions made by Ms Ewert in her affidavit are not given in a proper evidentiary form, and are not supported by adequate documentation. There was no cross examination of witnesses at the hearing. I accept that from Ms Ewert’s perspective she may have suffered difficulties in conducting farming operations, and I will accept that she has experienced serious health problems. Many of her farming difficulties, however, occurred before she exchanged contracts for the purchase of the Farm.

56. It is not clear what legal consequences Ms Ewert alleges arise out of the facts that she has attempted to prove. I find that Ms Ewert has not alleged or established any breach of the contract by the plaintiffs. She has not identified any representations that were material to her entering into the contract or established that any such representations were false or misleading or deceptive.

57. It is unfortunate for Ms Ewert, but the reality is that Ms Ewert has not at any time, before or after the date when the plaintiffs terminated the contract, been able to demonstrate that she has had the finance necessary to complete the contract by the payment of the balance of the purchase price.

58. Ms Ewert advised the Court at the hearing that she had been notified that day of an offer of finance that was sufficient to enable her to complete the contract. In the circumstances, the Court was obliged to advise Ms Ewert that, if that was the case, the only course open to her was to try to negotiate with the plaintiffs to achieve a result in the proceedings that was satisfactory to Ms Ewert. As there was no evidence about the matter, it was not something that could be taken into account.

59. It is not necessary or appropriate for the Court to consider what the outcome of the proceedings may have been if Ms Ewert had been able to obtain finance to complete the contract. As she has not been able to do so, the issue of whether she might have been entitled to relief against forfeiture does not begin to arise.

60. Paragraph 15(b) of the amended defence asserts that, by reason of the matters set out in Ms Ewert’s affidavit, “the terms” of the contract were unjust. Ms Ewert’s affidavit does not identify the terms referred to or articulate the basis of the claim that those terms were unjust.

61. I am satisfied that the plaintiffs are entitled to the relief claimed in their statement of claim, save for their claim for damages. I accept that the plaintiffs have lead evidence relevant to the quantification of their loss, but I would not make an order for damages without first receiving reasonably detailed submissions concerning the quantification of the loss, supported by specific references to the relevant evidence. I have noted that some of Ms Trickey’s evidence, as a matter of bare assertion, quantifies aspects of the loss claimed, while other components of the apparent loss are unquantified. As Ms Ewert was not legally represented, she was not able to take objection to aspects of the plaintiffs’ evidence related to the quantification of their loss that was not in admissible form, and where appropriate supported by adequate documentation.

62. I am prepared to give the plaintiffs an opportunity to serve on Ms Ewert and deliver to my associate further written submissions on the issue of damages, if they wish to do so, but it will be necessary that any such submissions be prepared strictly having regard to the relevant principles of the law of evidence and the need where appropriate to identify supporting documentation in the evidence.

63. The plaintiffs are entitled to an order for their costs of the proceedings against the defendants.

64. I invite the plaintiffs to provide short minutes of order to give effect to these reasons and to apply for a writ of possession. As requested by the plaintiffs, I will relieve them of the need to file a notice of motion seeking the issue of the writ. Given that the Farm is operated as a dairy farm the plaintiffs should be realistic about the time appropriate for the defendants to vacate the Farm.

65. The defendants will have 10 days after service upon them of the draft short minutes of order prepared by the plaintiffs and any further submissions on the issue of damages to serve on the plaintiffs, and to deliver to my associate by email, any written reply submissions and comments they wish to make on the appropriateness of the orders proposed by the plaintiffs.

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Decision last updated: 09 June 2020