Walsh v KC & WL Brain Pty Ltd (No. 3) - [2023] NSWDC 624

District Court

New South Wales

Medium Neutral Citation: Walsh v KC & WL Brain Pty Ltd (No. 3) [2023] NSWDC 624
Hearing dates: 30 October 2023 – 3 November 2023
Date of orders: 30 October 2023 – 3 November 2023
Decision date: 03 November 2023
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
See par [161].

Catchwords:
QUANTUM MERUIT – RESTITUTIONARY CLAIM for works done by plaintiff for defendant in connection with a rice crop which was found by the Court to belong to defendant and for other work done / materials provided for other work done by plaintiff for benefit of defendant.

Legislation Cited:
Nil.

Cases Cited:
Nil.

Texts Cited:
Nil.

Category: Principal judgment
Parties: Plaintiff – Alan David Walsh
Defendant – KC & WL Brain Pty Ltd
Representation:
Counsel:
Plaintiff – Mr Gunning, M.
Defendant – Mr O’Connor, J.
Solicitors:
Plaintiff – Rural Law.
Defendant – Walsh & Blair Solicitors.

File Number(s): 2020/00107856
Publication restriction: Nil.

Judgment

Plaintiff’s quantum meruit claims

Item 1

HIS HONOUR: I am currently dealing with the plaintiff's claim for the costs of planting, tending, watering and maintaining of the Dalree rice crop. The first item claimed was for electricity in the sum of $46,859.16. Mercifully, the parties have agreed that the plaintiff is entitled to that amount.

Item 2

The next claim is for repairs to the electric motor on the bore water pump. The amount in issue is the sum of $2,307.50. There is no dispute that the bore motor was damaged by a lightning strike. There is no dispute that it was repaired at the cost of $2,307.50 on 7 November 2016 before the exchange of contracts for the sale of the property.
In my primary judgment I accepted that there was an oral agreement concerning the Dalree rice crop. Paragraph [48] of my primary reasons sets out the evidence which I quoted from Mr Ken Brain, a principal of the defendant. I pointed out that the conversation deposed to by Mr Brain amounted to an oral contract. The question I then asked myself was whether that conversation took place. I then canvassed the relevant evidence and this at [55]:

"Given that it was the original plan that Dalree would be sold to the Defendant so that the Brains could both plant and harvest the rice crop, it appears to me to be probable that Ken Brain had the conversation with the Plaintiff that I quoted in [48] above. I have also reached the conclusion that it is more probable than not, such that the Defendant has persuaded me that the question I asked at the end of [48] should be answered 'yes'. I have spent some considerable time setting out conflicting parts of the relevant evidence and, as ought be evident, I have had to approach the evidence of both the Plaintiff and Ken Brain with circumspection. However, on this particular issue I find the Defendant’s case to be more compelling, particularly bearing in mind the evidence relating to the representations to CICL after completion of the conveyance and the failure of the Plaintiff to call or tender any evidence from his solicitor, Mr Glowrey, to explain away the significance of the representations made to CICL. There are other matters in the evidence which point, in my view, to inaccuracy and unreliability of many parts of the Plaintiff’s evidence to which I shall allude later, for the benefit of the parties in seeking to resolve matters relating to quantum."

I then went on to consider the contract for the sale of Dalree by the plaintiff to the defendant. Contracts for the sale of the property were exchanged on 8 February 2017. The contract was completed on 22 March 2017. The Dalree rice crop was harvested between 5 and 8 April 2017 and between 18 and 21 April 2017. In cross-examination this evidence was given:

"Q. The next item in your claim is for number 2, repairs to bore electric motor, $2,307.50?
A. Yes.
Q. The invoices behind tab 38...at page 876 of the court book...?
A. Yep, yep.
Q. This is an expense related to the repairs of the…electric motor that was used for the bore that pumped the water?
A. That's correct.
HIS HONOUR: Hang on.
Q. This was incurred when you were the owner of the property both...in equity and law, that is...before the exchange of contracts?
A. Yes.
Q. It would've had to be repaired anyway.
A. Well, the crop would've died.
Q. Sorry?
A. The crop would've died. It was [the] sole...source of water.
Q. In any event, it would've had to have been repaired?
A. Yes.
Q. Whether there was rice crop or not, it would've had to be repaired; correct?
A. Correct. Yes, correct."

The simple fact is that if the oral contract concerning the Dalree rice crop was premised on the basis that the property would be sold by the plaintiff to the defendant. That actually occurred. If that had not have occurred, the reason for the oral contract would have fallen away. The defendant needed the income from the Dalree rice crop to support its request to its bank, NAB, to obtain the necessary funding to purchase Dalree. That was well known not only to the bank and the defendant but also to the plaintiff.
One thing that can be said very justly about Mr Walsh is that he was a keen and learned rice farmer. If Dalree had not been sold to the defendant he would have kept the rice crop growing and harvested it for himself.
On any view, in my opinion, the repair of the damaged motor of the bore water pump was not an input strictly speaking of the cost of growing the rice but was part and parcel of maintaining a farm and had, as I said, the sale not proceeded, then the plaintiff would have been entitled to the Dalree rice crop and he certainly would have caused the bore to be repaired because either it was to be his crop or a crop for which he would be reimbursed by the defendant. For those reasons, the claim in question fails.

Item 3

The plaintiff's third claim was for government access charges for general security. The sum claimed was $518. The date of the claim is 17 January 2017. Mercifully, that is agreed.

Item 4

The fourth item was temporary water purchase, of 280 megalitres, at $90 per megalitre plus fees. The amount claimed is $26,315.58. That is agreed.

Item 5

There is a major disagreement about the fifth item, being a claim for 300 megalitres of water purchased by Mr Walsh at $20 per megalitre which were alleged initially to be water he needed to finish growing the rice crop. The amount claimed is $6,000.
In the affidavit of Mr Brain of 22 February 2021, which is exhibit 3, at [131] Mr Brain commences to reply to Mr Walsh's affidavit of 17 November 2020. As far as this item is concerned, Mr Brain said at [131](h) this:

"As to paragraph 18, I deny that the conversation set out in that paragraph took place. From October 2016 when the Dalree rice crop was planted until February 2017, Mr Walsh used water distributed by Coleambally Irrigation Cooperative Ltd (CICL) to Dalree in accordance with the allocation made by WaterNSW, which was the water we agreed to pay for as part of the Dalree rice crop agreement, and which was included in the written contract for sale. In about mid February 2017, I received a telephone call from Mr Walsh and had a conversation with him in words to the following effect:
He said, 'I don't have enough water for the rice crop on Dalree. Water is relatively cheap at $40 a meg. I'm thinking about purchasing 2,000 megs'.
I said: 'That is too expensive, the price is dropping because there is plenty of water about. In any case, Wendy and I are holding more than enough water on our allocation to supplement the Dalree rice crop needs. As the crop will be ours after settlement, we will provide the additional water you need for Dalree as we have surplus water on our other farms'.
It was not until the end of the 2016/2017 water season in May 2017 that we realised Mr Walsh had already purchased 2,000 megalitres of water for Dalree without our knowledge. This caused us to have surplus water which we could not use for the 2017/2018 water season, because WaterNSW only allows 30% of the allocation to be 'carried over' from season to season. In about May 2017, I telephoned Mr Walsh, who was in hospital at the time, to the following effect:
I said: 'We have more water than what we can use and carry over this year. We need to have any transfers done prior to 31 May, preferably at least a week before so that all approvals can be done. We will transfer as much as you can only your account so that you can meet your 30% carryover. But we will have to sell the rest. We can get $5/megalitre at the moment if we sell it, otherwise it will cost $90 plus\megalitre to 'park' the water on someone else's account'.
He said, 'Do what is necessary with the water'.
We transferred as much of this water as possible back to Mr Walsh's Hawkers account prior to the end of the irrigation season on 31 May 2017. This was done to offset any claim Mr Walsh had for the water he purchased in early February 2017. We sold the remaining water."

When I go to the documents from the CICL annexed to the affidavit of Mrs Wendy Brain sworn on 25 February 2022, which is exhibit 9, I can ascertain that the 2,000 megalitres purchased by Mr Brain were effective from 9.42am on 27 February 2017. There is no dispute that Mr Brain purchased that amount of water and he purchased it at the rate of $20 per megalitre.
From the same records, I can ascertain that water was used on the Dalree rice crop between 27 February 2017 commencing at 10.10am and continued until 10.10am on 2 March 2017. The metered amount of water was 51.5 megalitres. 51.5 megalitres was worth $1,030. I am prepared to allow that sum.
The record that I am currently looking at is numbered p 2 at the bottom of the document as one reads it. The 51.5 megalitres to which I have referred is under a heading "Completed Order Details". Mr Gunning, for Mr Walsh, referred me to a number of other entries that are under the heading "Incomplete\unfulfilled\future Order Details".
There are five entries for water allocated to rice but they all occur before the 2,000 megalitres of water were purchased on 27 February 2017. There is one entry after that date. That is for water which was said to begin to be delivered on 2 March 2017 and finished being delivered on 17 March 2017. 30% of the water delivered during that period was attributed to rice and 70% was allocated to "winter pasture".
The only trouble here is that the volume of water allocated was nothing. Furthermore, it is shown in a column which has entries in it of either EST or ACT. I assume that ACT means actual and EST means estimate. Accordingly, Mr Walsh, the plaintiff, can obtain no assistance in that regard from the water allocated to rice in the period between 2 March and 11 March 2017 because, according to that record, none was actually delivered.
For those reasons, for item 5, I allow $1,030 only.
Of course, what Mr Brain said in his affidavit was rejected outright by Mr Walsh in his evidence. For example, there was this concession made by Mr Walsh in evidence he gave on 15 August 2022 before me in Sydney. The piece of cross examination was this:

"Q. You started in about October, and you ended on 27 February. You'll see the last entry for rice was 27 February 2017.
A. That's, as I've stated in the past, not technically correct, because we use a certain amount of the water that I put into growing pasture and watering wheat crown. A certain amount of that water was continued onto the rice. So I over, I overordered extra for, for that - that watering, and rather than put, you know rice this much, wheat, this much, pasture this much, I've just put pasture, X, and I've just used that bit of extra water for, yeah, so that's, yeah, that's what we've - it's - we've - it's quite common."

That is clearly a concession that the extra water that he ordered was in fact an overordering of water and that only part of the water was used on the rice crop and some more of the water was used on winter pasture or for some other purposes which are yet to be considered in this hearing.
Mr Walsh later in cross-examination was asked these questions and gave the answers which I cite:

"Q. When you purchased the 2,000 megalitres of water, you were aware that Mr and Mrs Brain had a water allocation on their farms.
A. Yes, and we had the discussion on - I, I see an affidavit or see something where Ken said he offered me water, which is absolute rubbish, he - I would have taken him up on the offer had he, had he offered it to me, but he didn't, so I said, 'For 20 bucks a meg, we can do all this, this and this', and Ken said, 'Go for it', he agreed with it, that's why it went ahead.
Q. Mr Walsh, I put it to you that you didn't tell Mr Brain at all about your purchase of the 2,000 megalitres, do you agree?
A. Absolute rubbish."

Mr Walsh was being a very poor witness at that stage. He clearly was aware of what Mr Walsh had said in the affidavit which I quoted earlier today and decided to described Mr Brain's evidence as "Absolute rubbish". Unfortunately, that is not evidence that I can at all accept.

Item 6

The sixth item claimed by the plaintiff is two passes of Roundup\Weedmaster and Agritone, per hectare. The sum claimed is $3,540. There is no dispute about that item. I therefore allow it.

Item 7

Item 7 is the cost of spraying the herbicides referred to in item 6. As I said, there is no dispute about item 6. Dalree had 150 hectares of rice cropping area. Two applications of herbicide would indicate that there were 300 hectares treated.
There is a dispute between Mr Brain and the joint expert report. The joint experts agreed that $10 per hectare was a reasonable contracting rate for a broadacre application unless there were an invoice for $12 per hectare. The plaintiff gave this evidence on 4 March 2022 commencing at p 53 of the transcript:

"I'm not a contractor, so that means I physically have to take implements off the tractor and put the spray, spray unit on and calibrate it and do all the work to be able to then spray. And then once I've finished that, wash it out, and then take it off and put the implement back on again to do the other jobs. So I calculated that $2 a hectare was not an unreasonable amount to charge for that extra work given that I'm not a contractor."

Accordingly, the plaintiff is claiming $3,600, being two passes over each of the 150 hectares of the Dalree rice crop at $12 an acre. This is a claim in quantum meruit, not in contract. Mr Brain could have retained a contractor and had the same work done for the cost of $3,000. It would be unjust, in my view, to charge the defendants on a quantum meruit with a labour rate which was peculiar to Mr Walsh and where Mr Walsh could have utilised a contractor and incurred a lesser cost.

Accordingly, I allow for that item $3,000.

Items 8, 9 and 10

Items 8, 9 and 10 are also not disputed. Item 8 is the cost of applying Magister at a rate of 500 millilitres per hectare. The claim is for $5,520. As I said, it is not disputed. The next claim is for application of Gramoxone at 2 litres per hectare at a total cost of $1,420.50. That is also not disputed. Item 10 is the application of Stopm/Rifle at 3.5 litres per hectare at a cost of $5,197.50. That is also not disputed.
I allow those three sums.

Item 11

Item 11 is disputed. Item 11 relates to the cost of the spraying of items 8, 9 and 10, Magister, Gramoxone and Stopm/Rifle. The plaintiff claims $1,800 because he sprayed at the rate of $12 per hectare. For reasons given when discussing item 7, that should be reduced to $10 per hour. When one does so, one reaches the sum of $1,500.
I allow that sum.

Item 12

Items 12, 13 and 14 of the plaintiff's claim in quantum meruit need to be considered. They concern the application of two chemicals, one known as Barnstorm and the other known as Uptake. As I understand it, both those chemicals are herbicides used for the control of weeds. In his affidavit sworn on 20 October 2021, which is exhibit C, Mr Walsh said this:

"150. On 29 November 2016 I purchased the chemicals Barnstorm and Uptake to apply to the Dalree rice crop from I K Caldwell as per tax invoice 2262627. I purchased thirty 10-litre drums of Barnstorm for a total price of $27,762 exclusive of GST. I purchased ten 20‑litre drums of Uptake for a total price of $1,200.
151. This was a total cost of $28,960 exclusive of GST.
Exhibited behind tab 42 of ADW‑3 is a true copy of I K Caldwell tax invoice/Statement dated 30 November 2016 showing tax invoice 2262627.
(h) Spray costs at $12 per hectare $1,800.
152. I carried out the spraying of the Barnstorm and Uptake myself using equipment owned by me. At the time of carrying out the spraying, the reasonable rate of spraying a rice crop, as set out by the industry, was $12/hectare exclusive of GST.
(i) MAS Ag Spraying Barnstorm and Uptake $3,179.
153. On 17 January 2017 MAS Agwork aerial sprayed the Dalree rice crop with Barnstorm and Uptake. I received tax invoice 58685 for this aerial spraying for a cost of $2,890 exclusive of GST.
Exhibited behind Tab 43 of ADW-3 is a true copy of MAS Agwork tax invoice 58685."

The cost of the spraying of the chemical by MAS Ag spraying is item 14 of the plaintiff's claim and is not disputed. It is agreed. The sum in question is $2,890. As to the spraying of Barnstorm and Uptake, the joint expert report says this:

"KB and MR [the initials of each of the experts] agree that the prices are reasonable and substantiated for each of the chemicals, however, as there are no spray records available to view, we cannot validate application, location and rates."

Essentially, I have to rely on the evidence of the plaintiff for the application of these chemicals. In cross‑examination on Friday, 4 March 2022, Mr Walsh said this at T52.46:

"Q. .....by law are you required to keep a spray log of the use of chemicals on crops?
A. I am, yes.
Q. Do you have a copy of the spray log?
A. Yes.
Q. Is it in your evidence?
A. No one ever asked me for it.
Q. Wouldn't that support your claim for chemical costs?
A. Yes but then a person that knew growing rice would be able to see the amounts used and the chemical used and see that as a fair and reasonable estimate of costs as well.
O'CONNOR: Just in relation to the first item that is agreed. That's the two passes of Roundup, Weedmaster and Agritone.
WITNESS: Yes.
O'CONNOR
Q. I'm just informing his Honour that my clients agree with that claim. Going back to your spray log, do you have a copy here?
A. No.
Q. Is it something you could easily obtain?
A. No.
Q. Why couldn't you easily obtain it?
A. Because when I left Hawkers all the logs that were piled up into - all the logs and that were piled up into a big box and they're lying in my shed somewhere.
Q. I'm talking about the Dalree...
A. Same logs.
Q. Same logs. Right. So that your - they're in your shed..."

In cross-examination on the Monday, 7 March 2022, this evidence was given at T4.12:

"Q. Number 12, you've made a claim for $28,960 for the cost of Barnstorm and Uptake which I understand is a chemical herbicide?
A. That's correct.
Q. I asked you on Friday whether you had maintained spray logs for the use of any chemicals you'd used on your properties and you said you had.
A. Yes.
Q. Have you since Friday made an attempt to produce or recover those records?
A. I have spent time and I've been unable to locate them at this time.
Q. Mr Ryan, the expert, says he cannot validate the application or location and rate of use of this herbicide. At the time of purchase, you potentially could have used this herbicide on either Archdale, Dalree or Hawkers, that's correct?
A. No, that's not correct.
Q. You owned those. Why couldn't you have used it on Archdale?
A. I could have used it on Archdale, yes, but I could, could have produced invoices if that was asked of me for the chemical there for Archdale. And as for Hawkers, it's aerial sowing, so that's not a boom spray. You wouldn't - you'd have to use aircraft and - yeah.
HIS HONOUR
Q. May I assume therefore that you have no records relating to either purchase or application of the Barnstorm and Uptake?

A. I have records of the purchases which the invoices have been lodged. Any extra purchases I haven't, I haven't submitted those because naturally they were not Dalree's purchases. So if you look at the purchase amount, the litres and the rates that I've said, that was the rate that corresponds with the litres of chemical that I purchased for the area that I've sprayed.
Q. There's no record of it being sprayed on Dalree.
A. Only, only my - what's - the - name.
Q. Only your recollection?
A. Yeah."

Later at the foot of p 5 of that transcript this question was asked by Mr O'Connor and received the answer which I record:

"Q. You have the invoice but you don't have any other records to show where it was applied and the rate it was applied particularly in relation to the Dalree rice crop?
A. Not at this time."

When the hearing of this matter was adjourned in Wagga Wagga the matter was relisted for four days commencing on Monday, 15 August 2022 in Sydney. On Thursday, 18 August 2022, I reserved my decision of the major issue in the case as suggested by counsel. That is set out in [4] of my reasons published on 3 March 2023.
No attempt was made by Mr Walsh to bring to court during the week commencing Monday, 15 August 2022, his spray records, nor was any evidence adduced that he had lost them or, for example, they had been eaten during a mice plague. There was just no evidence about the matter at all.
When the matter was then adjourned until this week, again there was an opportunity and a long period of time in which the plaintiff could have produced the spray records from the records that were deposited in his shed or explain why they no longer could be produced. However, that did not happen.
A principle of our law is that proof lies upon him who makes an assertion, not on him who denies it. It is up to the plaintiff to prove that he used the Barnstorm and the Uptake on the Dalree rice crop. It is established that but 15 litres of Barnstorm and 10 litres of Uptake were applied to the Dalree rice crop because they were sprayed by MAS Ag spraying on 17 January 2017.
However, the cost of that 15 litres of Barnstorm and 10 litres of Uptake applied by aerial spraying was $1,448.10. 15 litres of Barnstorm was supplied by Mr Walsh to the agricultural sprayers. 10 litres of Uptake was supplied by Mr Walsh. MAS Agwork sprayed 10 hectares. Assuming that Barnstorm and Uptake were sprayed by Mr Walsh at the same rate, one would need 225 litres of Barnstorm for the whole of the Dalree rice crop, not 300 litres, and one would need 120 litres of Uptake, not 200 litres of Uptake.
As I said, the only evidence about their application is from Mr Walsh, a man whose evidence I am finding extremely difficult to accept on many issues. Furthermore, when talking in his affidavit of the application of other chemicals, he could, for example, tell me in exhibit C the rate at which he applied Roundup/Weedmaster and Agritone and the rates at which he applied Magister and the rate at which he applied Gramoxone and Stopm. However, there was no rate given in his affidavit for the rate at which he applied either of Barnstorm or Uptake.
In MFI 11, Mr Gunning was kind enough to draw my attention to written submissions on p 45 of the document which are headed, "Further Comments on the Application of the Herbicides". He quoted from a supplementary report of Mr Ryan, the defendant's expert. He quoted this:

"Based on the information set out in paras 139, 140, 143, 144, 148 and 150 of the Alan Walsh affidavit [exhibit C] I calculate that the total herbicide cost claimed to be $297.60/hectare, which is nearly $75/hectare (or one-third) more than the Alan Walsh gross margin. In my opinion the actual costs claimed of $297.60 seem high. The herbicide applications claimed include two applications of Weedmaster and Agritone and two applications of Barnstorm, whereas the Alan Walsh gross margin has only Weedmaster and Barnstorm (each) and no Agritone."

I can accept that the Barnstorm and Uptake were sprayed by MAS Ag, but I am not persuaded on the balance of probabilities that any more of those chemicals were applied by the plaintiff to the Dalree rice crop.
Accordingly, for the item 12, I allow the sum of $1,448.

Item 13

Item 13 is the spray costs claimed by Mr Walsh for the spraying of the Barnstorm and Uptake which he says he performed but which I am not persuaded on the evidence was actually performed.
I therefore disallow item 13.

Item 14

As I said, item 14 is agreed and the sum agreed is $2,890.

Item 15

Item 15 of the plaintiff's claim is a claim for $3,000 for spraying channels and drains on Dalree referable to the Dalree rice crop. In his affidavit of 20 October 2021, which was exhibit C, the plaintiff said at [154]:

"This charge [spraying channels and drains] was for 100 hours of spraying carried out at the rate of $30 per hour excluding GST for a total of $3,000 excluding GST."

In his affidavit of 16 February 2022, which is exhibit J, the plaintiff had more to say about this in [57] of that affidavit. That paragraph contains this material:

"I confirm that I carried out at least 100 hours of channel spraying. I used the tractor and a tow behind spray tank for around 30 hours of this spraying, which was a two-person job, one driving the tractor and one on the spray tank carrying out the spray. This was because there were fence lines and trees, meaning that it was impractical to use a boom. Having a man on the spray tank means that that person can easily spray over the fence and around the trees. I did the majority of the spraying myself using the ATV [a four‑wheel motorcycle] and driving it on the channel bank. This was around 70 hours. I did not only spray the area immediately surrounding the 150‑hectare rice crop. If I had only sprayed the channel beside the rice crop and then stopped, the weeds would've grown where the water has to flow down to the recycle area and this would have affected the efficiency of the water flowing away once the rice paddock had been flushed. Good farming management required that you keep all of your channels, your recycle area and any area where the water has to run/flow through, free of weeds. This spraying was done over a period of time."

In cross-examination on Monday, 7 March 2022, this evidence was given at T7.40:

"Q. .....Then you say at paragraph 154, 'This charge was for 100 hours of spraying'. That's not related to anything - sorry, what were you spraying to claim the $3,000?
A. Weeds in the channels and drains.
Q. That took you 100 hours?
A. That's with the motorbike and spray unit, and also there was a tractor and, and, and spray unit as well.
Q. You're charging for your time and labour?
A. But there was the time with the, the motorbike and fuel, and, and that as well so it's, it's, it's a bulk [claim].
Q. When did you perform this work?
A. From probably August through to - well gee, it was a continuing - right, right through to, to yeah, October, November, yeah."

The defendant's expert, Mr Michael Ryan, says this at [21] of his report of 22 December 2021:

"Paragraph 154 of the Alan Walsh affidavit sets out 100 hours of channel spraying at $30/hour. In my opinion, 100 hours of channel spraying is a lot of spraying for a 150‑hectare rice crop. No records are provided to substantiate the 100 hours claimed."

In the joint expert report this is stated:

"Ken Bullen believes the costs are reasonable if application was on all channels and drains on the Dalree property in the period in question. Michael Ryan states nothing to add from his 22 December 2021 report as per paragraph 21."

Reading carefully what Mr Ken Bullen had to say, he believes the costs were reasonable with a qualification. The spraying needed to be on all channels and drains on the Dalree property during the period in question. The period in question can only be from the time that the rice crop was planted until the end of this activity, which, from what Mr Walsh admitted in cross‑examination, was to November.
Since the crop was planted in October, I am prepared to allow the claim made in respect of two of the four months over which the spraying was conducted.
Therefore, in lieu of the $3,000 claimed, I allow $1,500.

Item 16

The plaintiff's 16th claim is for the use of Bio‑Prill. The amount claimed is $8,328.82. The defendant has submitted that I would allow nothing for this item. Likewise, item 17 is a claim for the spreading of the Bio‑Pril for the sum of $1,791.66. The defendant has submitted that I would allow nothing for this item.
Learned counsel for the plaintiff referred me to the affidavit of Mr Walsh sworn on 20 October, exhibit C, in particular [166] and [167]. He has also referred me to the affidavit of Mr Walsh of 16 February 2022, which is exhibit J [69] and [70]. I have carefully considered those and the nature of the claim made. However, I did comment upon the claim for Bio‑Prill in the judgment which I delivered on 3 March 2023. One might be forgiven for thinking that the plaintiff overlooked Proverbs 26:11.
I will not rehearse what I said in [83] of my reasons other than to reiterate my conviction based on all the evidence that the claim was completely unacceptable, that the defendant should not be required to pay for an experiment conducted by the plaintiff on the Dalree property.
The claim is therefore disallowed.

Item 17

As is the next item, item 17, the claim for the spreading of the Bio‑Prill, disallowed.

Item 18

The 18th item claimed by the plaintiff is a claim for the cost of the purchase of two chemical substances, MagnaCal and Boron. The plaintiff purchased 400 litres of MagnaCal and 40 litres of Boron from Ferti‑tech Australia Pty Ltd, a company which is based in Picton in Western Australia. The cost of the purchase of those two items was $2,012.
In his affidavit of 20 October 2021, which is exhibit C, the plaintiff merely attested to his purchase of those chemicals and that he applied them to the Dalree rice crop and not to pasture. The plaintiff was cross‑examined about this issue between pp 9 and 16 of the transcript of 7 March 2022, which was the Monday of the second week of the hearing in Wagga Wagga. One of the questions that he was asked and answered is this at T 10.47:

"Q. Why did you experiment with this product?
A. Over the course of my time with Ferti-tech, I've experimented with any number of trace elements, and in light of the Leaf test, I believe these were small case only sent to me to be worth a try just to, to see whether there's any, any value in actually doing that, and I, I have a history of all my farming life doing exactly that, testing and sowing, it's just seeing whether things would work out or not."

That is a concession by Mr Walsh that this was an experiment, an experiment similar to the experiment with Bio-Prill. Whether the addition of the MagnaCal and Boron to the Dalree rice crop had any part to play in its cultivation and success is completely unknown.I turn then to the expert evidence which might guide me in that regard. The plaintiff's expert, Mr Ken Bullen, says this in par 18.15 of his report of 8 February 2022:

"In relation to Ryan report section 3(32) referring to the application of MagnaCal and Boron to the rice crop, I'm instructed that Alan Walsh received recommendation for the application of these fertilisers by Ferti-tech Australia and subsequently applied and hence sunk these costs into the subject rice crop in 2016/17."

Mr Bullen does not say that this may have contributed to the success of the rice crop or that it had any effect on the rice crop at all, merely that he was told by Mr Walsh that he received a recommendation for the use of these "fertilisers" from Ferti‑tech Australia. That is not evidence that was given by the plaintiff in his lengthy evidence before the Court. On the other hand, the defendant's expert, Mr Michael Ryan, says this at par 32 of his report of 22 December 2021:

"Paragraphs 169 and 171 of the [Alan Walsh] affidavit refer to the purchase and application of MagnaCal and Boron to the rice crop for a total claimed cost of $3,754. These two products are foliar fertilisers. According to the product label, MagnaCal is, 'Designed for all Bulbs, Tubers and Root Vegetables', but rice is not listed. There is no mention of foliar fertilisers in the Alan Walsh gross margin. In my opinion, the application of these foliar fertilisers has not been substantiated."

It has been submitted on behalf of the plaintiff that he actually incurred the cost of purchasing these chemicals and applying them to the crop which was successful and therefore he should have his costs of this experiment. However, whether the use of these two chemicals contributed in any way to the crop or its success is completely unknown and appears to be contrary to what the producer of MagnaCal said the product was designed for.
In those circumstances, it seems I cannot conclude that the instructions that Mr Bullen referred to were accurate. There being no evidence that this actually contributed to the success of the rice crop and no concession by the defendant that it was, the item is disallowed. Only reasonable costs are allowed on a quantum meruit and the cost of the plaintiff's experimenting on the rice crop is, in my view, not a reasonable cost for the defendant to bear.
Item 18 is disallowed.

Item 19

Item 19 is the cost of Leaf testing. The purchase of the Leaf test kits amounted to $310. The Leaf test was to see the results of the application of the Bio-Prill, a concession made by the plaintiff in cross‑examination on Monday, 7 March 2022. Since the Bio-Prill has not been accepted, item 19 cannot be accepted.
Item 19, is therefore disallowed.

Item 20

It follows from item 18 logically that item 20, the cost of the application of the Boron and MagnaCal to the rice crop, ought also be disallowed.

Item 21

Item 21 is a claim for the cost of the top dressing of a number of paddocks with urea. MAS Agwork invoices bearing date 3 January 2017 and 19 January 2017 refer to the paddocks in question. The invoice dated 5 January 2017 includes one paddock which belongs to farm 209, one of the farms in the Hawker Aggregation.
There was a dispute on the evidence as to whether paddocks numbered 4, 7, and a paddock known as Bore belonged to Dalree. After carefully considering the evidence given by the plaintiff on that issue and despite confusion in his evidence, it appears to me to be highly probable that paddocks 4 and 7 belong to Dalree and there is no dispute that the paddock known as Bore of 37 hectares also belong to Dalree.
Accordingly, I allow the claim which has been adjusted to remove from the claim work done that is referred to in the invoice of 5 January 2017 by the deletion of the claim in respect of the 7-hectare farm that was on the Hawker Aggregation.
I therefore allow the sum claimed, $5,724.00.

Item 22

It follows logically from my allowing the claim at item 21 that I should allow also the item claimed at item 22. That, I am assured, has been adjusted to account for the exclusion of the urea that was used on the one paddock of the Hawker aggregation.
The sum allowed is $10,445.55.

Items 23, 24 and 25

Despite in MFI 15, learned counsel for the defendant having marked item 23 ($3,000.00) in red, he now concedes it should have been marked in green. There is no dispute then about items 23, 24 and 25. I allow them all. Item 24 is $200. Item 25 is another $200.

Item 26

Item 26 is contentious. The claim is for labour costs for 13 weeks between 1 October 2016 and 31 December 2016 in respect of the Dalree rice crop. In his affidavit sworn on 20 October 2021, exhibit C, Mr Walsh made a claim for 13 weeks labour costs at $2,000 per week [157] is this:

"This charge is for the period from 1 October 2016 to 31 December 2016. During this period the amount of work required to be done required two employees attending to the Dalree rice crop, which included myself and one employee at $1,000 each per week. This amount is less than I had to pay the employee to work for me."

There is, however, no documentary evidence of the payment of any sum of money paid to his employee Mr Mills, such as a wages book, or, if he were not strictly an employee but a contractor, of invoices sent by the contractor to him that required him to pay for the labour provided by Mr Mills. The work done is expanded in affidavit sworn by Mr Walsh on 16 February 2022. In that affidavit he said this:

"54. In relation to paragraph 24, the labour carried out by me and one of my employees from October 2016 until the end of December 2016 involved us walking the banks in order to identify and chip the Bathurst burrs. This was done several times over the lifespan of the Dalree rice crop. We had to do duck runs as overnight you would have ducks on the rice that needed to be removed. We had set up scare guns to keep the ducks away, however the ducks would get used to the sound so you would have to walk around the crop and go to where the ducks were and let off a few shots using a shotgun. The scare guns occasionally broke down and we had to repair them.
55. In or around December and January, the baldcoots moved in, which is a type of water hen. Baldcoots chew the rice and can decimate a crop if you let them get into it. Scare guns are not effective on baldcoots so you would have to physically walk the banks to where the baldcoots are and let a few shots off using a shotgun.
56. We would also spend a couple of hours every day going around the water and checking to see whether the bay height is right. There were occasions when a bay outlet would blow out and someone would have to go and get the tractor to repair it. This can be caused by an insect or a yabby making a small leak in the stop which allows the water to trickle through. Sometimes this can be prevented by blocking it up with mud or dirt however, this is often not enough and the stop would blow out. You have to be physically getting out and looking at each stop to identify any leaks. You cannot check this as you drive past.
57. Once the permanent watering began, you have to continue your water levels low to start with which is up to 5 centimetres over the bay until around Christmas time. You then increase it to maximum level which means the water is right at the top of the bank so the chances of blowing a bank are higher. From December 2016 onwards, whilst the work to be done often still required two employees, there were many other jobs on the farm that needed attention, which meant I could only allocate one employee (which was often myself) to constant monitoring of the Dalree rice crop."

That paragraph goes on to comment about other matters that have already been dealt with. It is accepted by the defendant that the rate of charge of $25 per hour is an appropriate rate at which to compensate Mr Walsh if he be entitled to anything under this head.
The sworn evidence of Mr Walsh is that he worked 40 hours per week on Dalree and 40 hours per week on the Hawkers Aggregation as well as spending two hours each day commuting between his residence at Deniliquin and the farms near Coleambally. In other words, he was working 94 hours per week over seven days per week, that is he was working 13.5 hours per day including commuting, or 11.5 hours per day doing manual tasks on the farms. At the time he was 50 years old.
In rough terms, although what Mr Walsh said is probably a generalisation, I can accept that he was putting in approximately that amount of time per week on Dalree. The question then becomes was all of his time spent on the Dalree rice crop? The first thing that can be noted is that one of the weeks of December 2016 was spent harvesting the Dalree wheat crop. That reduces the number of weeks to 12. 12 weeks at 40 hours per week at $25 per hour is $12,000.
However, I have already awarded to the plaintiff under items 7, 11, 13, 15 and 23 certain amounts of money for work that he actually did. The sum of those allowances if $9,000. If I deduct $9,000 from $13,000 I come up with $4,000, which I am prepared to allow the plaintiff.

As far as Mr Mills is concerned, I was concerned that his rate of remuneration has not been given in the evidence. I have taken the liberty of consulting the Furzer Crestani tables which are used by judges and legal practitioners in the calculation of damages for personal injury. As at the end of May 2022, it would appear that the average earnings for workers inter alia in rural occupations who are male was $1,354.80 per week. That is amongst the lowest of all the rates given in the tables. I am therefore prepared to accept that as at the end of 2016 it is likely that Mr Mills was being remunerated at the rate of $25 per hour.
The problem here is that whilst Mr Mills was working solely on Dalree according to the evidence of Mr Walsh, Dalree had pasture that needed to be attended to and had stock upon it in the pasture and had other things which needed to be attended to. It has been submitted by learned council for the defendant that I would reduce the amount claimed in respect of Mr Mills by about a third.
I am prepared to do so. That would reduce the sum payable in respect of Mr Mills to $9,000 from $12,000, and $3,000 for Mr Walsh coming to a total of $12,000.
For item 26, I allow $12,000.

Item 27

Claim 27 is in respect of labour costs between 1 January 2017 and 31 March 2017. The claim is the sum of $13,000, being a claim only in respect of the labour provided by Mr Walsh himself. It is clear from his evidence that he was spending 40 hours per week on Dalree, but here, again, Dalree was more than just the Dalree rice crop and there were other matters to be attended to.
In dealing with item 26, I reduced the amount of money payable for Mr Mills because of that. I believe that the appropriate thing to do is to reduce the claim by one-third to account for the fact that the plaintiff may have been doing work on other areas of Dalree during this period of time.
The claim is reduced to $9,000.

Item 28

Item 28 is this claim made with a heading in para [159] of the plaintiff's affidavit of 20 October 2021, exhibit C:

"Farm Vehicle at 0.60 cents/kilometre (220 kilometres per day equals $132 equals $924 per week for a total of 13 weeks)
159. This amount is for the farm vehicles used by each of myself and the one employee to drive from Deniliquin to Dalree and back to attend the Dalree rice crop for the period from 1 October 2016 to 31 December 2016."

In MFI 11, the plaintiff's final submissions in the form of a Scott schedule, Mr Gunning quoted in extenso the evidence of Mr Brain in respect of this item of claim. He also addressed me orally today about this item of claim. I dealt with this item of claim in [82] of my reasons given on 3 March 2023. I said this:

“82 At least two of the Plaintiff’s claims, to be assessed on a quantum meruit basis, are, in my view, quite unsupportable. The first concerns travelling time. The Plaintiff gave this evidence in cross-examination:
“Q. You've claimed at item 28 farm vehicle at .6 cents per kilometres 220 kilometres per day equals $924 per week for a total of 13 weeks. What does that claim relate to?
A. Me driving from my place of residence at Deniliquin to Dalree and actually driving around the property is probably more than that but anyway I just put 220 as a reasonable figure.
Q. You're charging Mr and Mrs Brain $12,000 for driving to work and back?
A. Yes.
HIS HONOUR: Déjà vu a personal injury case.
O'CONNOR: I beg your pardon, your Honour?
HIS HONOUR: Déjà vu a personal injury case.
O'CONNOR: Yes.
Q. Then item 29, again, you've charged $6,000 to drive to and from work in the 13 weeks that you claim at item 27. Is that correct?
A. That's correct.
Q. So, you've charged a total of $18,000 for the time you took to drive to Dalree and back?
A. Yes.
Q. Do you understand that's a reasonable cost that you can claim against them for the input costs of the rice crop?
A. I consider it very cheap. One of the frustrations I had when Ken said, "Give me your invoices for the crop" on whatsaname because that's what I said to him, I said, "What do I charge you? Do I charge for meals?"
HIS HONOUR
Q. For most of the period you were the owner of Dalree. Mr and Mrs Brain were adjoining property owners and after you sold Dalree you moved into--
A. Hawker’s.
Q. --Hawker’s which is contiguous. Yet you want them to pay the cost of your commuting from Deniliquin to Coleambally, correct?
A. I was still in control of the rice crop and growing that and putting those hours in so yes, I thought that to be fair and reasonable.
Q. Whether they were purchasing the crop or not you couldn't claim it as a tax deduction, could you?
A. I was asked for my costs so that's what I've put my costs at.
Q. Thank you.
O'CONNOR
Q. His Honour I think picked up on the next question I was going to ask you which is this is the same time you're driving to your property at Hawker’s to do the work on Hawker’s?
A. I combined the two, yes.
Q. Which is next door to Dalree?
A. That's right.”

The Plaintiff, when he owned Dalree could have lived there or spent his working days there – it had a residence. The completed his purchase of the Hawker Aggregation at the same time as he completed the sale of Dalree. The Hawker Aggregation had at least 3 residences on it. He could have lived there or spent his working days there. That he chose to live in Deniliquin and commute daily was his personal choice, not something for which the Defendant ought be liable.”

I maintain that view despite the further submissions of learned counsel for the plaintiff. It is something that could never, in my view, be properly claimed against a defendant on a quantum meruit.
I allow nothing for this claim.

Item 29

Claim 29 is exactly the same, and for exactly the same reasons, I allow nil.

Item 30

The current argument concerns the harvesting of the rice crop grown on Dalree. The total rice crop was 1,640.88 wet tonnes of rice. The plaintiff harvested half of the crop, or 8,020.44 wet tonnes. The plaintiff claims the rate of $28 per tonne, but the experts say that the reasonable rate for harvesting rice in the 2016/2017 rice growing period was $25 per tonne. In cross-examination, the plaintiff conceded that was a reasonable rate.
Claiming that he harvested half the rice crop, but allowing only $25 per tonne, the claim is for $20,511. The defendant submits that the plaintiff should be only granted 1/3 of that sum, so that in essence, the defendant alleges that the plaintiff harvested 546.96 tonnes of wet rice and at $25 per tonne, that amounts to the sum of $13,674. The relevant part of the cross-examination of the plaintiff was this:

"Q. Do you agree that there were three headers harvesting the rice crop?
A. No.
Q. Do you agree that Mr and Mrs Brain had two harvesters on the crop, harvesting?
A. Sometimes.
Q. You had one?
A. Yes."

The Brains had two harvesters. One was a 9770 John Deere class 7 harvester which had a capacity to harvest between 25 and 30 tonnes of rice per hour in good conditions. They also had a 9650 John Deere harvester which was a class 6 harvester and in good conditions, could harvest between 20 and 25 tonnes of rice per hour.
The plaintiff had hired an R76 Gleaner harvester which I have been told from the Bar table, albeit no-one can point me to the direct evidence, was a class 6 harvester and one would therefore expect that it would have the same harvesting capacity as the 9650 John Deere harvester.
Counsel before me have bickered like schoolboys for an hour and a quarter about this issue. Suffice to say that if the R76 Gleaner and the 9770 John Deere were the two harvesters involved, the Brain's harvester ought to have harvested more than the R76 Gleaner. If it were the smaller of the two Brain harvesters, the 9650 John Deere and the R76 Gleaner ought to have harvested the same amount. The concession by Mr Walsh that there were two harvesters on the crop at times indicates quite clearly that the Brains would have harvested more than the plaintiff.
The argument revolves around the fact that the Brains had two harvesters which were being used on rice crops between 5 April and 26 June 2017 on either the Dalree rice crop, the Hawker rice crop and the Roy Brain rice crop and over four days between 10 and 13 May 2017, Mr Walsh used the R76 Gleaner harvester on his property Archdale at Deniliquin.
Counsel submitted that the Brain's two harvesters could not be in the same place at the same time. The same argument of course applies to the one harvester being used by Mr Walsh. However, the fact remains that there were days on which there was harvesting of rice both on Dalree and on the Hawker Aggregation rice paddocks.
There were also days when they were harvesting on the Hawker aggregation and Roy Brain's properties and at least one day when there was harvesting on the Roy Brain property and also on Archdale at Deniliquin, a considerable distance from Coleambally. The argument concerns the difference between $20,511 and $13,674. In my view, one has to be somewhat arbitrary in arguments of this nature, but I am prepared to allow the plaintiff $15,000 under this head.

Item 31

The next item, item 31 is a claim for $14,069.16 for carting the Dalree rice crop to the SunRice silos. That amount is agreed and therefore it is allowed.

Item 32

The plaintiff's thirty-second claim is for $7,500. The claim is in respect of rice harvested from the farm of Mr Roy Brain, the father of Mr Ken Brain.
I discussed the position concerning Mr Roy Brain's farms at [37] of the reasons I delivered on 3 March earlier this year. The relevant evidence of Mr Walsh is contained in exhibit C, his affidavit sworn on 20 October 2021. In that affidavit, he said this:

"212. In relation to paragraph 35 of my November affidavit where I referred to insisting to harvest Roy Brain's rice crop, in November 2016, Ken reconnected with his father, Roy, and took over Roy's rice crop. The conversation I referred to at paragraph 26 of my November affidavit occurred in early December 2016. The statement at paragraph 26 was part of a broader discussion about who would strip what rice, who would help out, how many harvests we would require, etc. I said:
'For the right harvest this year, I will harvest Dalree and deliver it whilst you are doing your other properties and then we can both go over to Hawkers and harvest Hawkers.'
Ken said:
'We can assist with Dalree too. I can bring two harvests over. I will get dad to bring his tractor and bin to Dalree and then go where needed. After that, we can go to dad's and strip his rice crop as he planted late so it will probably be the last to be ready.'
I said:
'Well if we both have two employees each, that should be enough labour to get it done.'
Ken said:
'I agree.'
I said:
'We will jointly strip everything together.'
213. In or around mid‑May 2017, after majority of the rice was harvested at Hawkers, Ken and I moved our harvesters to Roy Brain's property and began stripping his rice. We harvested there until around mid to late June 2017 where we returned to Hawkers to strip the last part of Farm 209. After this, we went back to Roy Brain's property and kept going. The harvest at Roy's took a long time and it was drawn right out. Once we got into June 2017, we could sometimes only strip for two to three hours a day as the dew would not lift until around lunchtime and then it came back in at around 5pm. By this time, we had had a few rain events as well and it was very wet and boggy."

In his affidavit of 20 December 2021, which is exhibit 5, Mr Ken Brain said this at [95]:

"I deny paragraphs 212 to 214 and say:
(a) My father, Roy, and I made decisions together about working on his property without any discussion with Mr Walsh;
(b) On 10 May 2017, Mr Walsh took his header, auger bin, tractor and trucks to Deniliquin to harvest the Archdale rice crop;
(c) Mr Walsh and I agreed that whilst he was in Deniliquin harvesting the Archdale rice crop, instead of me harvesting Hawkers, Roy and I would harvest Roy's 86 hectare crop with our own headers to try and save Roy some money because he knew the crop wasn’t going to yield very well as it had been neglected after planting and we were trying to salvage an income from Roy and Anita [Mr Ken Brain's mother];
(d) On 12 May 2017, Roy and I harvested two truckloads, which were delivered by our contract drivers, Jason Perram (Mr Perram) and John Bedard (Mr Bedard) on 13 May 2017. However, as the moisture was getting too high, we stored 10.84 tonne of rice in Roy's aluminum tri-axle tipper for three days over the weekend, which Mr Bedard delivered on 16 May 2017. However, the moisture had not dropped;
(e) As Mr Bedard had hired Roy's aluminum tri-axle tipper, Mr Bedard was hoping to cart enough rice with his truck on Roy's trailer to cover the cost of hire. Mr Bedard carted 188.50 tonne of rice for Roy and Mr Perram carted 24.56 tonne on 13 May 2017. Mr Perram did not cart anymore rice because Mr Walsh then insisted that his trucks were to be filled first. Mr Bedard stopped carting rice on 6 June 2017;
(f) Whilst Mr Walsh was at Archdale, we took the opportunity to harvest some more of our own corn on our other farms while we had extra manpower;
(g) On or about 10 May 2017, I received a telephone call from Mr Walsh during which he abused me for not working on Hawkers and said words to the following effect:
'Get back to harvesting on Hawkers'.
(h) On 14 May 2017, we returned to Hawkers and harvested Farm 204 and then moved to Farm 209 additional to continuing harvesting. We recorded rainfall on 18, 19, 23 and 30 May 2017. The conditions in the rice on Hawkers were difficult crop, the crop was lodged, and the ground was wet and boggy;
(i) On 1 June 2017, we returned to complete Roy's harvest, which was completed on 19 June 2017;
(j) When we began Roy's in June, Mr Walsh had returned from Deniliquin. On 1 June 2017, Mr Walsh sliced his head open on a spinning pulley on his harvester. I took him to hospital and then home to Deniliquin. Mr Walsh had several stitches in his head and was advised by the doctor to take a week off. In that time, we completed harvesting two of the three and a half paddocks of rice on Roy's farm. When Mr Walsh returned, his header front broke a drive belt and was out of action for a further five days. Mr Walsh only assisted harvesting on the remaining three days;
(k) After harvesting Roy's property, we returned to Hawkers to finish off harvesting Farm 209 additional. However, on 24 June 2017, we pulled out because our headers were incurring too much damage in the poor conditions and our headers were then parked in our shed. Mr Walsh hired another contractor to complete the harvest of Farm 209;
(l) Roy's delivery summary dates show that the harvest was over 14 delivery days and that the yield was 7.9 tonne/hectare. As a comparison, Dalree yielded 10.48 tonne/hectare and Hawkers yielded 10.24 tonne/hectare."

In the judgment given on 3 March 2023, I referred to the injury to Mr Walsh’s head at [80]. I have found the evidence of Mr Brain much more convincing on this issue than the evidence of Mr Walsh. Over the last three days of the harvest on Mr Roy Brain's property, there were a total of 212.3 tonnes of wet rice harvested. There were three harvesters involved, the two belonging to the defendant and the one that had been hired by the plaintiff.
I allow one-third of the rice harvested over the last three days to the plaintiff, and that is 70.77 tonnes. It is agreed by the experts that the appropriate rate is $25 per tonne. That yields the princely sum of $1,769.25, which I round up to $1,770.
It has been submitted that this is not a liability of the defendant, but rather, a liability that Roy Brain should incur. Theoretically, I can understand that argument. However, it is clear that the Brains and Mr Walsh were working on the basis that the proposed joint venture, which is discussed in my primary judgment, was going to occur, and hence, although there was no formal request by the defendant that the plaintiff engage in assisting in the harvest of Roy Brain's crop, in fact that occurred, and one can understand the plaintiff being entitled in those circumstances to seek redress from the defendant.
Accordingly, for item 32, allow to the plaintiff the sum of $1,770.

Item 33

The next claim is for $6,135.36 for the cartage of an amount of Roy Brain's rice crop to the SunRice depot at Colleambally. It can be ascertained objectively that the certain amounts of rice were taken to the depot in motor vehicles registered number VTH 685 and AU 84 DT. Each of those trucks was owned by the plaintiff. The plaintiff’s trucks delivered or hauled 511.28 tonnes of rice from Roy Brain’s farm to the SunRice depot at a rate of $12 per tonne delivered. That amounts to $6,135.36.
The argument advanced was similar to the final argument advanced concerning the last item. The defendant points out from the evidence of Ken Brain which I quoted in respect of the last item, that the plaintiff forced Mr Brain to use the plaintiff’s trucks rather than use the trucks that were being driven by contract drivers, Mr Perram and Mr Bedard. That is correct.
However, someone would have to be paid for the delivery of the rice to the depot, whether it was the plaintiff or the defendant.
One can appreciate however that one of the trucks that had been used by one of the delivery drivers, Mr Perram, was in fact a tri-axle tipper that was owned by Mr Roy Brain. The cost claim by the plaintiff includes not only the cost of the driver but also the cost of the truck. Therefore the sum of $6,135.36 is inflated to some extent because the Brains as a family would have had the benefit of Mr Roy Brain’s truck. In the circumstances I am prepared to allow $4,000.

Item 34

Claim number 34 is a claim for $23,980. It is in respect of the purchase of temporary water according to p 39 of the plaintiff's final submissions which are in the form of a Scott Schedule which is MFI 11, the purchase of 1,199 megalitres of water at the cost of $20 per megalitre. However, the plaintiff concedes in MFI 11 that the correct amount that he claims is $22,400. I dealt with an issue concerning part of this water when I made a ruling on item 11 of the plaintiff's claim.
In item 5, the plaintiff claimed $6,000 for 300 megalitres at $20 per megalitre which was used to finish the rice crop. I only allowed 51.5 megalitres of water in respect of that item and allowed the plaintiff $1,030 for that amount of water. The plaintiff's submissions say this:

"In relation to the joint expert's conclusion that the price for the water is reasonable, it is not in dispute that the 2,000 megalitres of temporary water (were) purchased by the plaintiff, as set out in paragraphs 54 to 60 of the affidavit of Alan Walsh sworn 20 October 2021.
The plaintiff gives evidence that 300 megalitres were used to water the Dalree rice crop and this has been addressed at item 5 above. The plaintiff gives evidence that another 300 megalitres were used to water the pasture. This is addressed at item 44 below.
Out of the 1,400 megalitres that remained, 280 megalitres were transferred from the defendant's water account into the plaintiff's water account at Hawkers (par 9 of the affidavit of Alan Walsh sworn 16 February 2022 and annexure B to the affidavit of Wendy Brain sworn 25 February 2022).
This left a balance of 1,120 megalitres that the defendant received on the Dalree Water Account, when ownership of the property was transferred to the defendant. The dispute in relation to this water was on the basis that it was alleged that the plaintiff sold 3,100 megalitres of water which resulted in the need to purchase an additional 300 megalitres of water (transcript 4/2/22 p 50-52).
His Honour dealt with the issue of the 3,100 megalitres of water in pars 84 to 86 of his reasons for decision published 3 March 2013.
The plaintiff submits that, as the allegation that the plaintiff sold 3,100 megalitres has been disproved. The purchase of the 1,199 megalitres at $20 per megalitre to finish the Dalree rice crop to water pasture and to pre‑water the cereals was reasonable and this cost should be reimbursed to the plaintiff."

The first thing to say is that the plaintiff purchased approximately 2,000 megalitres of water. On his say so, 300 megalitres were used to water the Dalree rice crop. He did not need 2,000 megalitres to finish the Dalree rice crop, even on his own say so. I only allowed, as I have said, 51.5 megalitres of that water being used to finish the Dalree rice crop for reasons I have already given, whether he used a further 300 megalitres to water the pasture is yet to be addressed.
There is no dispute that the Brains transferred as much of this excess water as they could, to the plaintiff's account for the Hawker Aggregation as cited in the quotation I have just made from the plaintiff's submission.
Of the final 1,120 megalitres of water, the plaintiffs were forced to sell it for the sum of $5,600 because as has been pointed out in the evidence of Mr Brain which I believe I have already quoted, only a certain amount of water could be carried forward from one water season to the next, the water season being from 1 June in one year to the end of May in the following year.
The only benefit which the plaintiffs received was from the sale of the excess water that they could sell and they could only realise the sum of $5 per megalitre because there was so much water around at the time. The only "benefit" that the defendants received from the sale of the water, was the sum of $5,600. The defendant's argument is that title to this water passed on settlement of the contract for the sale of land, to the plaintiffs. I have sympathy for that argument.
When one buys a house which may have attached to it a tank of water, one is not required to drain all the water from the pipes of the house and from the water tank and a vendor does not generally take such water away, because it is extremely heavy and extremely bulky. The inclusions in the contract for the land included "all irrigation infrastructure, all water tanks and associated pumps…" One would think logically that that would include water stored in irrigation infrastructure and the water stored in the water tanks.
However, the defendant did receive of the $5,600 and the defendant should receive the benefit of that piece of income. Insofar as this leaves the plaintiff with a loss, that is the plaintiff's problem. If he needed 300 megalitres of water to finish off the Dalree rice crop which he said was his reason for buying 2,000 megalitres of water, he only needed to order 300 megalitres of water. He purchased far too much water when it was imprudent to do so and when Mr Brain had offered him his excess water to finish off the Dalree rice crop. Accordingly, for item 34, I allow the sum of $5,600.

Items 35 and 36

For the best part of an hour I have heard further argument about the use of Bio Prill. I have again been taken to the evidence of the plaintiff in this regard, which can be found in his affidavit of 20 October 2021, which is exhibit C, between pars 164 and 168. There is a reply by Mr Brain to that evidence, which can be found in Mr Brain's affidavit of 20 December 2021, which is exhibit 5, at pars 79 to 80 and 85.
There is another discussion of the use of Bio Prill by the plaintiff in his affidavit of 16 February 2022, which is exhibit J, pars 22 to 24 and also at pars 69 and 70, but the latter two paragraphs relate purely to the quantum of the claim concerning the Bio Prill.
Item 35 in the plaintiff's claim is a claim for $9,782.84 for Bio Prill being applied to 70 hectares of pasture at the rate of $166.57 per hectare. Claim number 36 is the cost of spreading of the Bio Prill, which was carried out by a contractor arranged through Elders at Deniliquin at a cost of $35.83 per acre. That claim is for $2,508.33.
It is worthwhile to again consider some of the expert evidence about the use of the Bio Prill. The defendant's expert, Mr Michael Ryan, in his report of 22 December 2021, which is exhibit 12, made these comments:

"28. Paragraph 166 of the Alan Walsh affidavit sets out the use of a product called Bio Prill which is treated human waste applied as a fertiliser. In my opinion, use of this product in rice production is uncommon. I note para 167 of the Alan Walsh affidavit states, 'I purchased the Bio Prill as a bit of an experiment'. I find it difficult to ascertain in the Alan Walsh affidavit the total amount of fertiliser applied to the subject rice crop. My interpretation of the Alan Walsh affidavit total 17.5 tonnes of MAP was applied to the subject rice crop, which is 117kg per hectare (para 181, 40 tonnes less 22.5 tonnes applied to pasture) and 77.5 tonnes of urea was applied to the subject rice crop (par 179) which is 517 kilograms/hectare. The Alan Walsh gross margin has DAP at 125 kilogram/hectare (a similar product to MAP) and urea at 350 kilograms/hectare. So if my calculation of urea is 517kg/hectare is what is being claimed, this is about 1.5 times the Alan Walsh gross margin. I am not sure why so much urea was applied to the subject rice crop.
29. Given the amount of fertiliser applied to the subject rice crop (as MAP and Urea) in my opinion the Bio Prill application was not necessary."

In the joint expert report of 22 February 2022, which is exhibit Z, at p 9, the joint experts say in relation to each of these claims:

"Ken Bullen and Michael Ryan agree data substantiates prices. However, there is insufficient data to determine the need for the application."

I have earlier ruled in relation to the Bio Prill that was spread on the rice crop, that it was as admitted by the plaintiff an experiment, and I would not order the defendant to pay for an experiment. In the course of argument I pointed out that if an organisation such as SunRice found that treated human excrement was being used as a fertiliser for rice, there might be certain valid concerns about consumer reaction to such intelligence. No doubt the current argument is based upon the fact that no such concerns might arise where the Bio Prill was spread on pasture.
However, it has to be borne in mind that the Bio Prill was purchased in August 2016 because I know from an invoice that the Bio Prill was carried by a carrier retained by the plaintiff to Dalree on 25 August 2016. I know from the invoice for the spreading of the Bio Prill on the pasture that it was spread on 10 and 19 December 2016. The defendant takes no point that that was prior to the exchange of contracts for the sale of the property by the plaintiff to the defendant. However, the fact remains that this was an experiment that is not justified by any expert evidence.
The plaintiff in his evidence referred to obtaining advice from Ferti-Tech but that is hearsay. The advice was never proved and, for example, what the plaintiff said about one of the pesticides was contrary to the recommendation of Ferti-Tech itself, as I pointed out earlier in relation to another head of claim. Again, I am not persuaded on the balance of probabilities that it is proper in the circumstances of an experiment that the defendant be liable for the spreading of Bio Prill on the pastures of Dalree. The plaintiff might be an experienced farmer, and I certainly found that he was.
However, experiments cannot always be successful, and as I pointed out in my primary judgment, Mr Walsh admitted in cross-examination that he had not used Bio Prill since his experiment at Dalree. Accordingly I reject claims numbered 35 and 36. I allow nil for those heads of damages.

Item 37

Claim 37 is a claim for $1,540 for the cost for the transport by the plaintiff himself of urea from Deniliquin to Dalree at the rate of $20 per tonne. There are claims by the plaintiff that he purchased 7.9 tonnes of urea on 10 December 2016, and 4 tonnes of urea on 19 December 2016 from Elders in Deniliquin. The account for that can be found on p 886 of vol 3 of the court books. That does not indicate how the urea was given to the plaintiff, but it may indicate that the urea was delivered to Archdale.
On 4 January 2017 the plaintiff purchased 25 tonnes of urea from Landmark at Deniliquin. The invoice which can be found at p 895 of the court books tells me that it was collected by Mr Walsh. On 18 January 2017 Mr Walsh purchased a further 25 tonnes of urea and that was delivered to Archdale. That was again purchased from Landmark. On 20 January 2017 he purchased 5.6 tonnes of urea from Landmark in Deniliquin, and that was delivered to Archdale.
On 31 January 2017 he purchased a further 10 tonnes of urea from I K Caldwell in Shepparton. The invoice, which can be found at p 898 of the court books does not tell me how it was delivered, whether it was picked up by the plaintiff or was delivered to his residence at Archdale, but the invoice is directed to Archdale Farms at Archdale.
It has been submitted by learned counsel for the defendant that I should construe [179] of the plaintiff's affidavit of 20 October 2021, which is exhibit C, as indicating that only after the last purchase of urea, that is on 31 January 2017, that the urea was transported by him to Dalree. But it appears to me more likely, considering the amount of urea involved, that each load was transferred after it was acquired by the plaintiff to Dalree. The question remains, however, whether the transportation of this amount of urea from Deniliquin to Dalree, which is near Coleambally, was appropriate, given that the distance can be travelled in about one hour.
At p 36 of the transcript of 7 March 2022 I asked Mr Walsh this question and received the answer which I set out beneath it:

"Q. What I want to know is, is the cost of the urea together with the freight thereon less than the cost of buying 77 tonnes of urea from Coleambally, or is it the same, or is it greater? That's what I need to know.
A. Yeah, yeah, no, well, I'm saying that I, I contend that it was less, but that's up to somebody else to work it out."

Of course, nobody has worked it out. There is no evidence before me of what the cost of buying urea would have been in Coleambally during the period between 10 January 2016 and 31 January 2017. I cannot invent evidence. It is up to the plaintiff to prove that this was either the same as, or cheaper than, buying urea directly from Coleambally and having it delivered directly to Dalree. That not having been proved, the claim must fail. I allow nil under this heading.

Item 38

Claim number 38 is for 22.5 tonnes of MAP at a cost of $680 per tonne. I know from p 899 of the court book that on 9 May 2016 the plaintiff purchased from Landmark in Deniliquin 40 tonnes of Koch MAP Monoammonium Phosphate at a cost of $680 per tonne. The plaintiff claims that of those 40 tonnes of MAP he applied 22.5 tonnes to the paddocks where the rice was to be planted at the time of the planting of the rice. This, I am told, is called seed sodding.
The experts agree that the price was reasonable, but were unable to establish where the fertiliser was applied, nor were they able to ascertain the reasonableness of quantities applied. It is clear from the evidence of Mr Ken Bullen, the plaintiff's expert, given on 16 August 2022 by AVL in Sydney, that the experts did not have available to them any records to ascertain where the MAP was applied or in what quantities. That is the basis of the defendant's objection to this item.
However, one thing is abundantly clear, that the plaintiff had certain expertise in the growing of rice. When asked about the joint experts' scepticism about the claim, if I can use that term, this evidence was given by Mr Walsh in cross-examination:

"Q. Do you have any answer to the experts' query as to why it was reasonable to use it, firstly, why do you say it was reasonable to use this fertiliser?
A. I'm, I'm, I'm a bit disappointed. The experts would realise that you would plant a fertiliser that has phosphorous and nitrogen in that with the seed, so you, you always plant a fertiliser with the seed to give it a boost to start it off, so 150 kilograms per hectare is not excessive, and I would have thought that that's a, a very reasonable thing to do in sowing a sod-sown rice crop."

That evidence was given towards the end of p 37 of the transcript of 7 March 2022. On p 38 Mr Walsh stood down in order that the evidence of another witness could be interposed. Mr Walsh returned to the witness box at 3.06pm on the same day and his cross-examination continued on p 57 of that transcript. At p 58 he pointed out that the urea was a petroleum based fertiliser, of which 46% was nitrogen, and then this question and answer were given:

"Q. With respect to number 38, the MAP, the experts both say they're unable to establish where the fertiliser was applied nor reasonableness of the quantities applied. Do you have any evidence to establish where it was applied?
A. Only that that's a standard the industry would accept as what you do when you're sod-sowing rice..."

I am prepared to accept Mr Walsh in that regard. The crop was a successful one and one cannot discount the real chance that the application of the fertiliser when planting the paddy was one of the factors that led to the success of the crop. I accordingly allow the claim for $15,300.

Item 39

The debate concerning item 39 has lasted about 45 minutes. Claim 39 is for 37.5 tonnes of urea at $415 per tonne. This was a claim in respect of urea which was applied at the seed sodding stage. In the opinion of the defendant's expert, Mr Michael Ryan, the appropriate application of urea to a rice crop is 350 kilograms per hectare. In the opinion of the plaintiff's expert Mr Ken Bullen, 420 kilograms per hectare is an appropriate rate. As counsel and the parties cannot agree on almost anything in this case, compromise is called for. I am prepared to accept that 375 kilos of urea per hectare is reasonable over the entire crop over the entire growing season.
375 kilograms over 150 hectares gives me a total of 56.25 tonnes of urea. At item 22 I have already allowed 25.17 tonnes of urea. The difference is 31.08 tonnes. At $415 per tonne, and there is no dispute that that is an appropriate rate, the plaintiff is entitled to the sum of $13,197 and I allow that sum.

Item 40

Item 40 is a claim for $7,000 for 70 tonnes of Bio Prill applied to fertilise pasture on Dalree. For reasons already given, I reject the claim in respect of Bio Prill in its entirety. Claim number 40 is disallowed. Nil awarded.

Item 41

Claim 41 is a claim for $10,570 for spreading 70 tonnes of Bio Prill on pasture at Dalree. For reasons I have already given concerning Bio Prill I disallow the claim. Nil awarded.

Item 42

Claim 42 comprises three claims. The first is the spreading of 120 hectares of pasture at Dalree with the urea at a cost of $12,450. The second is a claim in respect to the spreading of Bio Prill on 70 hectares of the pasture at Dalree, for which $7,000 is claimed. The final claim under item 42 is a claim for spreading a further 120 hectares with urea at a cost of $11 per hectare, being $1,320.
For reasons already given, I reject the claim in respect of the Bio Prill. In respect of the urea, the total cost claimed is $13,770. There is, however, a problem here. In my primary judgment I referred at [29] to a duel of affidavits between the plaintiff and Mr and Mrs Brain. I set out the competing affidavits. However, I omitted to include in that exhibit K, which was the final affidavit sworn by Mr Walsh on 28 February 2022.
It must be recalled that the hearing of this matter commenced at Wagga Wagga on 1 March 2022 I had been hearing another case on Monday, 28 February 2022, which fortunately for the current parties, settled overnight. Mr Walsh's affidavit, which is exhibit K was sworn on that Monday, the day before the hearing commenced. The final paragraph [11] of that affidavit is this:

"In relation to para 64 [of his affidavit of 16 February 2022, which is exhibit J] there was no urea applied to pasture on Dalree. It was all applied to the Dalree rice crop."

Furthermore, this evidence was given on Monday, 7 March 2022 in Wagga Wagga. Commencing at T 60.24:

“His Honour:
Q. But I thought you said you didn't spread any urea on the pasture?
A. Look, that's true, and if we look at paragraph 181, that might clarify things a little bit. On the second line it's got 'pasture'. That actually should read 'rice', I apologise for that."

At the question at the foot of T 60, again the plaintiff said a reference in para 181 should be "rice" not "pasture". At the top of p 61 of the transcript he made the same correction. This evidence was then given:

"Q. So that the total amount of urea applied to the rice was 77.5 tonnes as well as 37.5 tonnes?
A. No, no, your Honour, the, the amount was purchased but only 37.5 was put on that, that fill-up, and then another 18 at the top dressing some months later, so that's 50, 57, 57 and a half tonne total area on the, on the rice, on the 150 hectares of rice.
Q. Now I'm just going through it. At 174 we purchased 11.9 tonnes of urea, at 175 we purchased 55.6 tonnes, and at paragraph 176 we get 10 tonnes. Those three are…- 77.5 tonnes that all adds up to. That's right. When I get to 182 the average cost of - 17.5 tonnes of urea was applied to the pasture on Dalree for a total cost of 79923. That's [paragraph] 178. The Scott Schedule is wrong isn't it? I mean if I go to [178] it says 17.4 tonnes of urea that were applied to pasture at Dalree.
A. That is wrong.
Q. Sorry?
A. That is wrong.
Q. That is wrong, is it?
A. The reference to pasture should not be there.
Q. That should be 'rice' too is it?
A. Yes, that's right."

The evidence of the plaintiff was quite confident that all the urea was applied to the rice crop and not to pasture. The current claim is therefore not supported by the sworn evidence of the plaintiff. The claim is rejected.

Item 43

Claim number 43 is a claim for the spraying of a chemical at the rate of $12 per hectare over 120 hectares. In MFI 11 the plaintiff's written submissions in this regard, in the form of a Scott Schedule, this is said:

"The plaintiff's evidence is that this spraying occurred as a result of the defendant supplying the plaintiff with chemical to do a broad leaf spray on 120 hectares of pasture, and that the chemical sprayed would have been MCPA (transcript 7 March 2022, p 63 lines 10-15).
The plaintiff gave evidence under cross-examination that, whilst the experts agree that $10 per hectare was a reasonable contracting rate, as:
'I'm not a contractor, so that means I physically have to take implements off the tractor and put the spray, spray unit on and calibrate it and do all the work to be able to then spray. And then once I finish that, wash it out, and then take it off and put the implement back on again to do other jobs. So I calculated it at $2 a hectare was not an unreasonable amount to charge for that extra work, given that I'm not a contractor.' (Transcript 4 March 2022, p 53 lines 35-40).
The plaintiff submits that the cost of him [sic] carrying out the spraying was $12 per hectare."

Of course there is no record kept of this spraying, and I am to a large extent in the hands of the plaintiff. However, there does not appear to be any issue that this chemical was supplied to him by the defendant and the chemical is MCPA. There is, however, a problem. There was not 100 hectares of pasture on Dalree. In another affidavit the plaintiff said that there was only 70 hectares of pasture, but it is clear from reliable evidence that I quoted in my primary judgment at [19] that the pasture at Dalree was 79.73 hectares. I round that off at 80 hectares for the sake of convenience.
I cannot allow the claim at $12 per hectare because if it is cheaper to bring in a contractor, one brings in a contractor, rather than doing the work oneself. The defendant should not be required to pay a rate peculiar to Mr Walsh when Mr Walsh could easily have engaged a contractor to do it at a lesser rate. Accordingly, I allow for item 43 the sum of $800.

Item 44

Item 44 is a claim for 300 megalitres of temporary water on pasture growing on Dalree and in the pre-watering of the wheat ground on Dalree. The amount claimed is $6,000. The records of CICL which are annexed to the affidavit of Mrs Brain sworn on 28 February 2022 show that 132.4 megalitres of water was used to water pasture on Dalree during the period when it was in the possession of the plaintiff. 132.4 megalitres of water at $20 per megalitre is a sum of $2,648 and I allow that sum.

Item 45

The final item claimed by the plaintiff, item 45, is the cost of repairing a sump on Dalree, albeit that in MFI 11 and MFI 14, both refer to the "sump" as a "pump", just to complicate matters. In [198] of his affidavit of 20 October 2021, exhibit C, the plaintiff said this:

"In or around March 2017 I hired an excavator for the cost of $150 per hour excluding GST for 14 hours and carried out repairs to the [sump] on Dalree myself. The hire cost was a total of $2,100 excluding GST. I operated the excavator myself for the 14 hours, which was a labour cost of $800. In addition, I incurred the cost of approximately $100 in consumables to carry out the repairs."

There is obvious gilding of the lily in that statement, which was made on oath. Firstly, the excavator belonged to the plaintiff. He did not hire an excavator at all. He said in is oral evidence that if he had had to hire an excavator it would have cost him $200 per hour, and hence he was only charging $150 per hour. He could not tell me whether the repair of the sump was before or after settlement, which occurred on 22 March 2017. If it was before settlement, it was probably a capital cost. If it was after settlement, it was a benefit to the defendant. In his oral evidence the plaintiff said this about the work that was done:

"When you have a sump, so it's draining a sump, the suction pipe had caved in with dirt, so the suction pipe was below the dirt, so I had to get an excavator to lift that suction pipe out and then excavate it out, and because of the angle and the soft dirt, it kept falling back in, so it took an incredibly long time, and very difficult. But we eventually got there, to secure a depth in that sump, in order to be able to drain the water from the rice crop."

Who the "we" are has not been explained, but clearly someone was assisting the plaintiff. It may have been his employee or contractor, Mr Mills. The plaintiff charged $800 for 14 hours labour, which was charging his labour out at the rate of $57 per hour. However, I have already allowed in item 27 the labour costs of the plaintiff in respect of the period from 1 January 2017 to 30 March 2017. I cannot allow labour twice. I have no hesitation in awarding him the $100 that he claimed for "consumables to carry out the repairs".
The real question is should I make some allowance for his using his excavator? I do not know how old the excavator was, I do not know whether it had been wholly written off. The evidence is quite silent in that regard. I am prepared to allow $500 for the use of the excavator, as well as the $100 for consumables. Under this heading 45, I allow the sum of $600.

Total

If my mathematics be correct, the total of the sums claimed was $396,892.28 and the total I have allowed is $214,302.30

**********

Decision last updated: 16 April 2024

Medium Neutral Citation:	Walsh v KC & WL Brain Pty Ltd (No. 3) [2023] NSWDC 624
Hearing dates:	30 October 2023 – 3 November 2023
Date of orders:	30 October 2023 – 3 November 2023
Decision date:	03 November 2023
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See par [161].
Catchwords:	QUANTUM MERUIT – RESTITUTIONARY CLAIM for works done by plaintiff for defendant in connection with a rice crop which was found by the Court to belong to defendant and for other work done / materials provided for other work done by plaintiff for benefit of defendant.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – Alan David Walsh Defendant – KC & WL Brain Pty Ltd
Representation:	Counsel: Plaintiff – Mr Gunning, M. Defendant – Mr O’Connor, J. Solicitors: Plaintiff – Rural Law. Defendant – Walsh & Blair Solicitors.
File Number(s):	2020/00107856
Publication restriction:	Nil.