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  • Unreported Judgment

Oilgrowers Management Ltd v Essential Asset Management Ltd

 

[2003] QSC 269

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

29 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2003

JUDGE:

Mackenzie J

ORDER:

1.Without prejudice to the right of a party to seek an earlier hearing, the application is adjourned to the next available chamber day in Cairns;

2.Costs are reserved.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – JURISDICTION AND AVAILABILITY OF REMEDIES GENERALLY – GENERALLY – where parties engaged in tea-tree oil management scheme – where applicant manager of the growers’ businesses – where applicant’s right of entry derive indirectly from leases granted by first and second respondents – where applicant sought an injunction restraining the respondents from preventing the applicant carrying out management activities over their businesses and land

EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – SUFFICIENCY – where evidence supporting application excluded executed copies of critical agreements – where evidence failed to identify parties to the management agreements – whether evidence in support of the application sufficient for proof of basic proposition in question

COUNSEL:

A R Philp for the applicant

J D Henry for the respondent

SOLICITORS:

Gayler Cleland Towne for the applicant

MacDonnells Solicitors for the respondent

[2] MACKENZIE J:  The originating application in this matter seeks what might be summarised as injunctions restraining the respondents from preventing the applicant from carrying out what are alleged to be its functions and duties as responsible entity of Oilgrowers Tea-Tree Project No 3. The scheme is a registered management scheme, the purpose of which is to extract and sell tea-tree oil.  Mr Mark Daulby, director of the applicant, deposes that there are about 380 members of the scheme.  The scheme itself is not, as far as I can ascertain, exhibited to any of the affidavits.  The information which follows has been extracted from the material before me. 

[3] Tower Trust (SA) Ltd (“Tower”) was engaged by the applicant as custodian to hold certain assets as agent for it.  Tower, as custodian, is lessee of three properties known as Burditt Farm, Martin Farm and Melaleuca.

[4] The original lessor of Burditt Farm was the second respondent.  However, by a contract executed in or about April 2002 the freehold of the land was transferred by the second respondent to the first respondent.  The lease executed in relation to Martin Farm shows FNQ Oilgrowers Pty Ltd as lessor and IOOF Australia Trustees Ltd as lessee.  Whether any of these are the same entities as either of the respondents or Tower under a different name or have divested their interests to them is not clear on the evidence.  The only evidence that the lessor and lessee are now one of the respondents or Tower respectively is to be gleaned from Mr Daulby’s first affidavit where he deposes that Tower is lessee of the three properties and evidence to like effect from Mr Huxtable, a manager of Tower. 

[5] It is deposed that Tower, as custodian, has granted each grower a licence to enable the grower to establish and maintain a plantation of tea-trees and harvest them.  A pro forma licence agreement exhibited to Mr Daulby’s affidavit shows the parties as Tower as licensor, the applicant (“manager”) as agent for the landholder (the second respondent) and the grower.  Under the licence agreement the grower agreed to pay a licence fee to the landholder second respondent at the direction of the licensor (Tower).  The trees were to be the property of the landholder and the oil the property of the grower. 

[6] A draft management agreement provided, inter alia, that the grower appointed the applicant as manager of the grower’s business.  The manager was obliged to do a variety of things for the purpose of cultivating, tending and caring for the trees and managing the grower’s business in a commercial manner in keeping with normal practice of the tea-tree industry.  The manager was entitled to a variety of fees, disbursement of which was to be governed by the constitution, defined as “the deed dated 12 May 1999 by the manager”.  As far as I am aware the deed is not among the documents before me.

[7] Clause 10 of the management agreement gives the right, as between the manager and the grower, for the manager to enter upon the plantation for the purpose of discharging the manager’s obligations pursuant to the management agreement.  By definition, the right of entry relates to that piece of land on which the grower will be entitled to establish its business.  It is this right of entry that is at the heart of the applicant’s present application. 

[8] The applicant’s argument is as follows. The lessee from the first and second respondents has given licences to growers which recognised that a management agreement may be entered into by growers.  The management agreement gives a right of entry in respect of that individual grower’s plantation to the applicant for the purposes previously described.  The respondents do not have the right to prevent the applicant from entering the property pursuant to and for the purposes of the rights and duties it has under the management agreement.  The management agreement is founded on the lessees’ rights under the lease.  Short of termination of the lease, the respondents have no right to prevent the applicant having access.  Concerns on the part of the third and fourth respondents as to the viability of the scheme or, at worst, the existence of a collateral purpose of forcing the applicant to cooperate in restructuring the scheme are irrelevant to the present application. The respondents’ only interest is in payment of rental due under the leases to Tower.

[9] On the other hand the respondents argue that the evidence in support of the application is deficient in a number of respects including the absence of executed copies of critical agreements and lack of identification of the growers who are parties to management agreements.  If an application for adjournment because of late service of material was refused, the application should be dismissed because of the identified deficiencies, or, if not, adjourned so that they were the subject of evidence.

[10] It may be observed that the right of entry to the whole of the lands seems to depend on the existence of agreements with individual growers so that entry to the whole of lands may be achieved because there are a multiplicity of individual agreements relating to contiguous “plantations”.  I am conscious of the burden on resources of establishing this if there are a large number of licensees.  However the right asserted may depend on proving this proposition in a satisfactory way.  It may not be necessary to produce each and every document to do this but  sufficiency of proof is a matter for the applicant to consider.  There may be other satisfactory ways as well.  However, in my view the material falls short of satisfactory proof of the basic proposition at this point.

[11] Reference has been made above to other documents which may be desirably included and other deficiencies that may need to be addressed when the matter next comes on for hearing.  I am conscious of the fact that there is a dispute as to the necessity to harvest the plants promptly and that there is some obscurity as to the worth of any undertaking as to damages on the part of the applicant and as to the existence of willingness on the part of the respondents to give any undertaking at all.  Having reached the conclusion that the evidence is in need of supplementation, it is undesirable to embark on a discussion of the wider issues raised in the respective submissions of counsel.

[12] In accordance with the approach I foreshadowed at the hearing, I have concluded that the application should be adjourned rather than dismissed. Since the adjourned application will probably be heard on amplified material it is unnecessary for the matter to be heard by me on the next occasion it is before the court.  Because on one view of the matter there may be a need for expedition in having the application resolved the application should be adjourned to no later than the next available chamber day in Cairns, with costs reserved.     

[13] I order as follows:

 

1. Without prejudice to the right of a party to seek an earlier hearing, the application is adjourned to the next available chamber day in Cairns;

2.       Costs are reserved.                    

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Editorial Notes

  • Published Case Name:

    Oilgrowers Management Ltd v Essential Asset Management Ltd & Ors

  • Shortened Case Name:

    Oilgrowers Management Ltd v Essential Asset Management Ltd

  • MNC:

    [2003] QSC 269

  • Court:

    QSC

  • Judge(s):

    Mackenzie J

  • Date:

    29 Aug 2003

Litigation History

No Litigation History

Appeal Status

No Status