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Top Line Produce Pty. Ltd. v Cuda[2016] QDC 179

Top Line Produce Pty. Ltd. v Cuda[2016] QDC 179

DISTRICT COURT OF QUEENSLAND

CITATION:

Top Line Produce Pty Limited & Another -v- Cuda & Ors [2016] QDC 179

PARTIES:

TOP LINE PRODUCE PTY LTD ACN 126 152 323

(first plaintiff)

and

JACKLYN DAWN TINDEL

(second plaintiff)

v

BRUNO JOHN CUDA

(first defendant)

and

NICOLA MARIO CUDA

(second defendant)

and

BJC NO 1 PTY LTD ACN 159 361 458

(third defendant)

FILE NO:

103 of 2015

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

20 July 2016

DELIVERED AT:

Cairns

HEARING DATES:

16 to 18 February 2016

JUDGE:

Morzone QC DCJ

ORDERS:

  1. The proceeding will be listed for further or final orders in accordance with this judgment including costs at 9:00 am on 16 September 2016.
  1. Unless the proceeding is otherwise resolved, the first plaintiff, by its officers or shareholders, and all defendants are directed to attend, participate in, and act reasonably and genuinely in, a mediation to be conducted at Cairns at a time and place determined by the mediator on or before 15 September 2016.
  1. The mediator is Andrew Philp QC. If he is not available, then an alternative mediator will be nominated by the court unless otherwise agreed by the parties.
  1. A copy of this judgment must be provided to the mediator.
  1. The estimated maximum period of the mediation is 1 day.
  1. The parties will negotiate a fee with the mediator.
  1. The parties will pay the following proportions of the mediator’s fees:
  1. (a)
    first plaintiff – one third;
  1. (b)
    first and third defendant – one third; and
  1. (c)
    second defendant – one third.
  1. The parties must pay their respective portions of the fees prior to commencement of the mediation unless otherwise agreed with the mediator.
  1. The mediator is to be informed of the appointment by the first plaintiff’s lawyers.
  1. The parties have liberty to apply upon giving the other parties at least 3 business days’ notice.
  1. Costs are reserved.

CATCHWORDS:

CONTRACT – JOINT VENTURES – parties – form and terms of the joint ventures – whether parties entitled to reimbursement of expenditure for the farming of land –appropriate relief – money due under contract, damages or taking of an account – mediation referral order before final orders.

LEGISLATION:

Uniform Civil Procedure Rules 1999, r 320

CASES:

Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216

Adams v Bank of New South Wales [1984] 1 NSWLR 285

Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153

Colin D Young Pty Ltd v Commercial and General Acceptance Ltd (Unreported. NSW Ct of App. 24 August, 1982)

Competitive Funerals Pty Ltd  v Singh Rai [2005] NSWSC 1171

Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209

Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95

Fazio v Fazio [2012] WASCA 72

Marek v Australian Conference Association Pty Ltd [1994] 2 Qd R 521

Marcolongo v Mattuisi [2000] NSWSC 834

McKay v McKay [2008] NSWSC 177

Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1

Mulherin v Quinn Villages Pty Ltd [2007] QSC 231

Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154

Raward v Vine Nominees Pty Ltd [2001] QSC 494

Rossi and Ors v Vu [2005] QSC 373

Rushton (Qld) Pty Ltd v Rushton (NSW) Pty Ltd [2003] QSC 8

Russo v Russo [2015] NSWSC 17

Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65

Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 79 ALJR 129

COUNSEL:

C. Ryall for the plaintiffs

M. Jonsson QC for the defendants

SOLICITORS:

Miller Harris Lawyers for the plaintiffs

Girgenti Lawyers for the defendants

  1. [1]
    At the end of the parties’ successful shared farming joint ventures, their relationship soured, and they now claim their respective costs, expenses and profits.

Background

  1. [2]
    The parties undertook their shared farming pursuant to separate joint ventures on properties controlled by the defendants from about November 2012. The parties variously contributed their long and extensive experience, labour, land, plant and equipment.
  1. [3]
    The first plaintiff company acted through its sole director, Darrell Tindel, who was also a shareholder together with the second plaintiff, Jacklyn Tindel. The first defendant, Bruno Cuda, was the sole director of the third defendant company, and he owned a farm at 139 Tinaroo Falls Dam Road in Atherton in Queensland. The second defendant owned a farm at 124 Manthey Road in Tolga in Queensland.
  1. [4]
    The first joint venture was for the shared farming of sweet potatoes on the first plaintiff’s farm and other land owned by a third party (“Sweet Potato Joint Venture”). There is a dispute about the parties to the agreement, in particular, whether the agreement was between first plaintiff and first defendant or the third defendant. The parties are also in dispute about the form and terms of the agreement. This involves consideration of oral discussions from about September 2012, correspondence between solicitors, the production of a draft deed of agreement which was never executed and the parties’ contemporaneous conduct.
  1. [5]
    A little later, in or about December 2012, the first plaintiff and the third defendant company made a second joint venture to farm tomatoes on the first defendant’s farm (“Tomato Joint Venture”). There is a dispute about the terms of the Sweet Potato Joint Venture arising form discussions and contemporaneous conduct and in the context of the existing Sweet Potato Joint Venture.
  1. [6]
    The first plaintiff also had another share farming agreement with the second defendant in or about December 2012 and early 2013 to farm of tomatoes on the third defendant’s farm (“Second Tomato Joint Venture”). The parties dispute the terms of the Second Tomato Joint Venture gleaned from discussions and contemporaneous conduct, in the context of the pre-exiting Potato Joint Venture and Tomato Joint Venture.
  1. [7]
    All joint venture arrangements were mutually terminated in or about November, 2013.
  1. [8]
    At that time the first plaintiff and the first defendant made an oral agreement to deal with the existing crop of sweet potatoes (“Final Crop Agreement”). It was agreed that the first defendant would maintain and harvest the final crop, retain the products generated form the final crop, and reimburse the first plaintiff and the Sweet Potato Joint Venture.
  1. [9]
    The various joint venture parties are also in dispute about their respective costs, expenses and profits of the various joint ventures and incidental arrangements.
  1. [10]
    In addition, the second plaintiff, although a shareholder of the first plaintiff, separately claims for her labour in each of the joint ventures pursuant to an oral agreement, which is disputed by the defendants.
  1. [11]
    The first plaintiff’s additional claim for damages for conversion, recovery of goods or alternatively, in detinue, has been substantially resolved by the voluntary return of the goods. The first plaintiff seeks the costs of that cause of action.

Issues

  1. [12]
    The determinative issues in the main claim and counterclaims arising from the various joint venture arrangements can be distilled as:
  1. Who were the parties to the joint ventures?
  1. What was the form of the joint venture agreement?
  1. What were the terms of the joint ventures?
  1. Are the parties entitled to their various claims and counter-claims?
  1. What is the appropriate relief?
  1. [13]
    These issues largely depend on the credibility and reliability of the principal and secondary witnesses, their conduct and contemporaneous documents.
  1. [14]
    The determinative issue in the second defendant’s claim is whether the parties reached an oral agreement in relation to her services to the various joint ventures. This also turns on the further issue of the witnesses’ credit.

Witnesses

  1. [15]
    The plaintiffs relied upon the evidence of Darrell Tindel to prove the oral form and terms of the three joint venture agreements alleged by the plaintiffs.
  1. [16]
    I found Mr Tindel’s evidence too vague, uncertain and doubtful. I am not satisfied of the form and terms of the joint venture agreements as contended by the plaintiffs. Apart from his chronological imprecision, Mr Tindel was unable to descend into any reasonable degree of specificity about the critical substance of the joint ventures. It was only after considerable prompting by his own counsel that he belatedly mustered some recall of material discussions concerning machinery hire fees. His evidence is at odds with the parties’ performance during the joint ventures and the draft Share Farming Deed originally proposed on Mr Tindel’s instructions to the first plaintiff’s solicitor. However, I generally accept Mr Tindel’s evidence relating to the farming operations carried out by him or under his supervision.
  1. [17]
    The plaintiffs’ other witnesses were discreetly limited to some subsidiary issues and which were secondary to proof of the primary facts.
  1. [18]
    The plaintiffs also rely upon expert accounting evidence of Luke Samways. He produced a short expert accounting report on the erroneous assumption that there were only two (not three) joint ventures. Accordingly, he distilled the parties’ respective entitlements to the moneys in two joint venture bank accounts. He also gave evidence about his fleeting dealings with Messrs Bruno Cuda and Nicola Cuda. It seems to me that Mr Samways’ evidence is tainted by his faithful reliance on the unilateral instructions of Mr or Mrs Tindel on behalf of the first plaintiff company. Overall, I found the evidence the plaintiffs’ witnesses of limited value and only prefer aspects of the evidence that are objectively demonstrable.
  1. [19]
    I prefer the evidence of the defendants’ principal witnesses, Bruno Cuda and Nicola Cuda, generally and in preference to Mr Tindel’s testimony on the same area. Mr Bruno Cuda impressed me as a forthright witness whose testimony was both accurate and reliable. Mr Nicola Cuda gave sufficiently accurate testimony with simplistic candour. Their evidence was corroborated by other witnesses, and by the contents of contemporaneous documents.
  1. [20]
    I also preferred the defendants’ other witnesses, Messrs Farley and Newland, who provided credible supplementation of the evidence I accept.

Sweet Potato Joint Venture

  1. [21]
    The plaintiffs contend that the agreement constituting the Sweet Potato Joint Venture was between the first plaintiff and the third defendant and was partly oral and party implied from the parties’ conduct.[1]The plaintiffs also rely upon the subsequent conduct of the parties to say that the other party to the share farming agreement was the third defendant not the first defendant.
  1. [22]
    Whilst I accept that there were meetings and oral discussions during the month of September 2012 between the first plaintiff and the first defendant, I am unable to discern from the plaintiffs’ evidence any oral agreement with the requisite certainty. I accept the testimony of Mr Bruno Cuda (corroborated by the third defendant)[2]that the discussions in September 2012 on the farm and in Bundaberg were to the effect that the parties would contribute their time and equipment without charge.[3]It seems to me that these initial discussions were merely antecedent to reaching an agreement through their respective solicitors. Further, it seems to me that the parties’ conduct cannot be easily isolated from the communications between the parties’ solicitors.
  1. [23]
    The defendants contend that the agreement was between the first plaintiff and the first defendant (not the third defendant) on terms which were specifically reduced to writing in correspondence[4]exchanged between the parties’ respective solicitors,[5]and that an instrument so produced served also as a template for the other joint ventures.[6]
  1. [24]
    The parties do not dispute the existence of the relevant correspondence between the solicitors which evolved as follows:
  1. On 7 October, 2012, the first plaintiff’s solicitor emailed the first defendant a draft share farming deed to pass to his solicitors for review.[7]The draft deed identified the first plaintiff and first defendant as the counterparts to the agreement. The email also raised the possibility of a formal lease agreement with Mr Kochi. At that time, part of the land that the parties had in contemplation for the conduct of their farming operations was land held under an informal tenancy from Mr Kochi.
  1. On 16 November 2012, the first defendant’s solicitor emailed the first plaintiff’s solicitor and requested amendments to the draft deed and sought confirmation of their acceptability.[8]The first defendants’ solicitor explained that Mr Tindel had been informed of the history of the usage of the land held from Mr Kochi without a written lease agreement, and that the absence of a written lease was no longer an issue.
  1. In a further email dated 21 November 2012,[9]the first plaintiff’s solicitor confirmed that the amendments were all acceptable to the first plaintiff and attached the final form of the deed. Whilst he stated that his client would prefer to press for a formal lease with Mr Kochi, it was not an impediment to finalisation, and he said:

‘In the meantime I think we can finalise this share farming agreement and work towards the formal lease with Kochi. I have attached a marked up Deed … Please confirm you are satisfied with these changes and we will arrange execution of same.’

  1. [25]
    A final form of the deed was produced, but never executed.[10]By that time the parties commenced work on the joint-venture farming apparently cognisant of the evolving solicitors’ communication, in the absence of formal documents including a formal lease.
  1. [26]
    The first defendant testified that the final deed was hand delivered by his solicitor to his farm. At that time Mr Tindel (on behalf of the first plaintiff) “said to both of us that he didn’t need to sign it, because we were a good family and he doesn’t have any problems with – with us and he wasn’t going to sign it.”[11]
  1. [27]
    The first defendant also testified that in the following week he overheard a conversation between Mr Tindel and a person identified as Mr Tindel’s solicitor. He recalled that:[12]

“… I was sitting straight across the table from Mr Tindel. I could quite clearly hear the conversation coming through the phone anyway, and Mr Waters was urging Mr Tindel that it was in his best interest to sign that contract, and Mr Tindel said no, they’re a good family. I don’t need to sign. Michael Waters said that he could be removed from the property at any time if he didn’t sign that contract. Mr Tindel said no, they’re a good family. I don’t need to sign, and I’m not going to sign, and I sort of got up and walked away a little bit because I could hear it too clearly, and they further discussed it for another good five minutes, and then Mr Tindel came off the phone and he said I’m not signing – I’m not signing if there’s no need to.”

  1. [28]
    He recalled raising the matter again with Mr Tindel the next day: “Well, I asked him again the next day. I said we still should sign this agreement, and he said I’m not signing it, because you’re a good family and there’s no need for me to sign it, and that was probably the last of that – spoken of that agreement.”[13]
  1. [29]
    When cross-examined on the topic, Mr Tindel was unresponsive, evasive and had a poor recollection. I reject his evidence as being unsatisfactory and unreliable. I accept the first defendant’s evidence about the circumstances surrounding the deed’s non-execution.

Parties, form & terms of contract

  1. [30]
    As to the terms and parties (whether the first plaintiff and first defendant and/or the third defendant) to any concluded agreement, this is not a classic case of offer, acceptance and consideration.
  1. [31]
    The enquiry is essentially objective.[14]Consideration can be given to the conduct of the parties,[15]including conduct after the formation of the contract,[16]and any admissions against interest made on the part of an alleged party to the contract.[17]
  1. [32]
    The parties’ subjectively held intentions, expectations or aspirations are irrelevant to the question of whether or not two parties intended to be or become legally bound to a given arrangement. Like other aspects of the law of contract, an objective prism governs. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[18]the High Court held:

“…[I]t is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe…”.

  1. [33]
    The search for the requisite intention is thus objective and impersonal,[19]and is as much concerned with what the parties did, as what they said or wrote.[20]Evidence of any uncommunicated intention, aspiration or reservation is irrelevant to the enquiry.[21]The act of signature might play a role in that enquiry.[22]But a signature is by no means essential in this case.[23]Context is also important.[24]
  1. [34]
    I do not accept the plaintiff’s contention, in those circumstances, that the parties did not intend to make a concluded contract unless and until the parties had executed a formal contract.[25]
  1. [35]
    In my view the parties by their conversations and conduct accepted the unexecuted deed and affirmed its terms in an air of trust such that it did not require their execution.[26]They were at arm’s length, and the dealing was on commercial terms. Their commercial relationship had reached the point that they evidently and objectively intended to be legally bound by a concluded agreement in terms evidenced by the unexecuted deed. Even if there was some antecedent oral agreement between the parties, the matters so agreed were overtaken by the contents of a subsequently adopted unexecuted deed dealing with the very same subject matter.[27]
  1. [36]
    I find that the parties to the Sweet Potato Joint Venture were the first plaintiff (as the ‘Farmer’) and first defendant (as the ‘Owner’, and not the third defendant). Their compact was formed by a combination of their oral discussions, conduct and writing.
  1. [37]
    The first plaintiff contends that the parties agreed to contribute equally to and be equally liable for the costs and expenses of the joint venture.[28]I am unable to discern any credible oral agreement to this effect. Instead, I have concluded that the parties agreed to the terms to that effect in the unexecuted deed in relation to the Sweet Potato Joint Venture, as contended by the defendant.
  1. [38]
    The relevant terms are:

“1.1The Owner shall make available to the Farmer and the Farmer shall take and work part of the Land for the term commencing on the date hereof and expiring once the crop finishes, and thereafter from year to year until terminated as herein provided.…

2. SHARE OF PROFITS AND SHARE OF COSTS

2.1The parties agree that they shall share equally, the costs of farming the Land and selling the Produce (the ‘Costs’). The Costs shall include the costs of:

1.1.1Transporting seeds that will be planted on the Land;

1.1.2Seeds that will be planted on the Land;

1.1.3Planting of the seeds;

1.1.4Fertilising of the Land for the production of the Produce;

1.1.5Diesel fuel for machinery used for the production of the Produce;

1.1.6Wages paid in relation to the production of the Produce (but there shall be no payment of wages for Darrell Tindel or for Bruno Cuda);

1.1.7Workers Compensation Insurance for employees used for the production of the Produce;

1.1.8Superannuation for employees used for the production of the Produce;

1.1.9Water usage (including water allocation costs proportionate to the amount of water used on the Land for the production of the Produce);

1.1.10Packing of Produce;

1.1.11Transport of Produce;

1.1.12Agent’s commission and other sale costs for the sale of Produce;

1.1.13Rental for leasing the Land (lot 4 on RP 718341);

1.1.14Electricity used in the production of the Produce.

Whether those Costs are incurred prior to or after the date of this Deed.

2.2Costs do not include:

1.1.15Rates for the Land;

1.1.16Insurance for public liability, for the Land or the equipment used by the parties;

1.1.17Depreciation of the Land or any equipment;

1.1.18Each party’s costs of preparing and negotiating this Deed; or

1.1.19Fair wear and tear or damage to any equipment;

1.1.20Costs personal to a party that were not substantially related to the production of the Produce.”

2.3In the absence of any further or other arrangement between the parties such Costs shall be paid [by] each party as and when they fall due. If any Costs have already been incurred by a party, prior to this Deed, then that party may provide the other party with a notice requiring re-imbursement, within 14 days, for those Costs.

2.4The profits (if any) of the sale of the Produce shall be shared equally (the ‘Profits’). Profits shall be the gross proceeds of sale of the Produce less the Costs.

Hire and use of plant & equipment

  1. [39]
    The first plaintiff claims fees for its grader and harvesting equipment used in the course and conduct of the farming operations, namely:
  1. $159,427.00 for the hire and use of the first plaintiff’s sweet potato grader; and
  1. $44,000.00 for the hire and use of the first plaintiff’s harvesting equipment.
  1. [40]
    The defendants argue that the terms of the deed tend strongly against the existence of any subsisting arrangement under which deductions on account of usage of plant and equipment would be permissible. I agree.
  1. [41]
    Clause 2.1 records the parties’ agreement to share “costs of farming the Land and selling the Produce”. The sub-paragraphs under clause 2.1 inclusively identify the relevant costs. Each category is consistent with the ordinary use of the term “costs” as being an actual expense or price paid to acquire, produce, accomplish or maintain something. This is also consistent with clauses 2.2 and 2.3. By clause 2.2, the parties excluded depreciation on any equipment used in the course of relevant operations (clause 1.1.17); and fair wear and tear, or damage to any equipment used (clause 1.1.19). Clause 2.3 refers to “Costs” being “paid” by a party and a process of “reimbursement” for “those Costs”.
  1. [42]
    Relevant to this case, the provisions do not expressly include a party’s charge for “hire fees”, or the like, for plant and equipment already owned by that party and used in the course and conduct of the farming operations. In my view, this is not a species of “cost” within the meaning of clause 2.1.
  1. [43]
    In that regard, I opine that the joint venture parties intended to contribute to the joint venture, without reimbursement, the use of their own plant equipment and land. I am bound to conclude that the first plaintiff’s hire charge for its grader and harvesting equipment is not a reimbursable cost pursuant to the Sweet Potato Joint Venture agreement.

Other Expenses

  1. [44]
    The first plaintiff claims reimbursement for expenses paid in the course and conduct of the farming operations, being:
  1. One half of $32,861.83 for the installation of a T-tape irrigation system;
  1. $6,667.65 for accountancy fees; and
  1. One half of $33,747.39 for chemicals and fertilisers.
  1. [45]
    The defendants did not admit these claims for want of disclosure, and were restrained from leading evidence in relation to those facts pursuant to rule 165(2) of the Uniform Civil Procedure Rules 1999 (Qld).
  1. [46]
    The claimed expenses have been vouched by disclosed documents admitted into evidence,[29]and I accept Mr Tindel’s evidence about the nature of the expenditure. I am satisfied that the first defendant’s expenditure is a species of cost within the meaning of clause 2.1 of the written part of the joint venture.
  1. [47]
    Therefore, the first defendant is entitled to reimbursement of $39,972.26, representing the first defendant’s share of the expenses as pleaded in 17(a) of the Amended Statement of Claim.

Final Crop Agreement

  1. [48]
    It is common ground that the Sweet Potato Joint Venture was ended by the parties in or about November 2013. At that time, a final crop of sweet potatoes had been planted on the first defendant’s land.
  1. [49]
    The undisputed terms of the parties’ oral agreement are that the first defendant would:
  1. maintain and harvest the final crop;
  1. retain the profits generated from the final crop; and
  1. reimburse the first plaintiff and the joint venture for “the costs” paid by the first plaintiff and the joint venture in planting the final crop.

Reimbursement Claims

  1. [50]
    The first plaintiff claims the following expenses as being for planting the final crop:[30]
  1. $10,755.00 to Tableland Fertilizers;
  1. $33,077.36 for planting the final crop: $16,984.66 paid for seeds; $71.70 for transportation, $920 for wages and $15,191.00 for contract workers;
  1. $9,510.38 for the purchase of a WEG variable speed drive from Regal Beloit Australia Pty Ltd;
  1. $8,593.18 for electrical services paid to Kochi Contractors Pty Ltd; and
  1. $4,500.00 for tractor work undertaken by Darell Tindel.
  1. [51]
    There is no dispute that the plaintiff paid $10,755.00 to Tableland Fertilizers as an expense.[31]
  1. [52]
    The defendants did not admit the other payments amounting to $33,077.36 for planting the final crop for want of disclosure. The defendants were restrained from leading evidence in relation to those facts pursuant to rule 165(2) of the Uniform Civil Procedure Rules 1999 (Qld).[32]At trial, the claimed expenses of $33,077.36 were vouched by disclosed documents admitted into evidence,[33]and I accept Mr Tindel’s evidence about the nature of the expenditure. I am satisfied that these are reimbursable costs in favour of the joint venture pursuant to the Final Crop Agreement.
  1. [53]
    The parties remain in dispute in relation to the first plaintiff’s other expenses claimed for planting the final crop, namely:
  1. $9,510.38 for the purchase of a WEG variable speed drive from Regal Beloit Australia Pty Ltd;
  1. $8,593.18 for electrical services paid to Kohci Contractors Pty Ltd; and
  1. $4,500.00 for tractor work undertaken by Darell Tindel.
  1. [54]
    Mr Tindel gave evidence that he and Mr Bruno Cuda went to Cairns together and he had to pay for the “vario drive”. He testified that Mr Cuda promised to pay him back, and they arranged installation including for a box to house the equipment.[34]It is unclear whether the equipment and associated work was expended in planting the final crop.
  1. [55]
    Mr Bruno Cuda testified that the variable speed drive and associated electrical work were part of the “previous crops that were harvested” and were “totally irrelevant” and had “nothing to do with” the final crop.[35]He testified that, whilst Mr Tindel wanted to regulate the water flow using a variable speed drive, he considered that it was unnecessary because the relevant farms were sufficiently well served by watering pumps and systems. He testified that he told Mr Tindel: “By all means, if you want to put one in, it’s at your cost and your arrangement”. He went with Mr Tindel to buy the equipment and had a cabinet built to house the equipment on the farm shed wall. He further testified that at the end of the joint venture, he was prepared to consider buying the equipment from Mr Tindel after the accounts were settled. However, he said that the former equipment was reconnected when the variable speed drive malfunctioned one or two months later. The variable speed drive was removed and stored by Kochi Contractors Pty Ltd.
  1. [56]
    I am not satisfied that the costs of the variable speed drive of $9,510.38 and the associated electrical work of $8,593.18 were expended in planting the final crop. I also prefer the evidence of Mr Cuda and I find that the equipment was and remains the property of Mr Tindel. Therefore, I conclude that the claimed expenses were not a reimbursable cost pursuant to the Final Crop Agreement, or the Sweet Potato Joint Venture.
  1. [57]
    The claimed $4,500 for tractor work seems to be a form of wage for ‘tractor work by Darell’ Tindel.[36]Wages for Mr Tindel were expressly excluded as a reimbursable cost pursuant to subclause 1.1.21 under clause 2.1. The Final Crop Agreement was made to effect a winding up of the operations associated with the final crop which existed at the end of the joint venture. There is no evidence that the parties intended to adopt a wider meaning of “the costs” than the species of costs contemplated under the written part of the Sweet Potato Joint Venture constituted by clause 2.1 of the unexecuted deed. Therefore, I conclude that $4,500.00 for tractor work undertaken by Mr Tindel is not a reimbursable cost pursuant to the Final Crop Agreement.
  1. [58]
    In summary, I find that the following costs incurred in the planting of the final crop are reimbursable pursuant to the Final Crop Agreement:
  1. $10,755.00 to Tableland Fertilizers pleaded in paragraph 18(a) of the Amended Statement of Claim; and
  1. $33,077.36 for various other payments listed in paragraph 19 of the Amended Statement of Claim.

Tomato Joint Venture

  1. [59]
    It is common ground that the first plaintiff and the third defendant company also entered into a separate share farming arrangement being the Tomato Joint Venture.
  1. [60]
    I accept, and it is not disputed, that Mr Tindel for the first plaintiff and Mr Bruno Cuda on behalf of the third defendant entered into the Tomato Joint Venture.
  1. [61]
    However, the parties dispute the genesis and terms of this agreement. The plaintiffs allege that the Tomato Joint Venture was partly oral and partly implied by conduct in similar terms as, but separate to, the Sweet Potato Joint Venture. On the other hand, the defendants assert that it was implicit that the first plaintiff and third defendant would conduct the Tomato Joint Venture generally in the manner and upon the terms of the Sweet Potato Joint Venture.
  1. [62]
    I again prefer the evidence of Mr Bruno Cuda in relation to the commencement and performance of the Tomato Joint Venture. Whilst the idea of conducting this joint venture was floated initially,[37]there was no agreement to do so until early February 2013. The first plaintiff and third plaintiff, through their respective officers, had knowledge of existing joint ventures and terms. The parties’ broad discussions and conduct occurred amidst their course of dealing and performance of the established Sweet Potato Joint Venture as between the first plaintiff and first defendant. In that context I accept the testimony of Mr Bruno Cuda (again corroborated by the third defendant)[38]that the discussions in early February 2013 were along the “same lines” as discussed and the “same arrangements” as the sweet potatoes in that Mr Tindel agreed and the parties proceeded on the basis that the parties would contribute their equipment without charge.[39]
  1. [63]
    I find that it was implicit in the parties’ discussion and conduct that they would conduct the Tomato Joint Venture in the same manner and terms as the Sweet Potato Joint Venture, including the written terms in the pre-existing unexecuted deed.

Hire and use plant & equipment

  1. [64]
    The first plaintiff claims fees for the use of its tomato grader, harvesting equipment and mulch, used in the course and conduct of the farming operations, namely:
  1. $25,096.50 for the hire and use of the first plaintiff’s tomato grader;
  1. $4,950.00 for the hire and use of the first plaintiff’s tomato harvesting equipment; and
  1. $907.50 for plastic mulch.
  1. [65]
    The relevant terms are those in clause 2.1 of the written part of the joint venture (by reference to the pre-existing unexecuted Sweet Potato Joint Venture deed). I do not accept that the Tomato Joint Venture contained any additional or different terms that entitled the parties to charge a hire fee for their own plant and equipment used in the course and conduct of the tomato farming operations.
  1. [66]
    I opine that the joint venture parties intended to contribute to the joint venture, without reimbursement, the use of their own plant equipment and land. This is the effect of the oral evidence I’ve accepted. It is also consistent with the terms in the written part of the Second Tomato Joint Venture evidenced in the unexecuted deed. For the same reasons discussed above in relation to the Sweet Potato Joint Venture, the hire charge of the first plaintiff’s grader and harvesting equipment are not a species of “cost” within the meaning of clause 2.1. I conclude that the first plaintiff hire charges are not a reimbursable cost pursuant to the Tomato Potato Joint Venture agreement.
  1. [67]
    However, the situation in relation to the plastic mulch is different. I accept Mr Tindel’s evidence that the product was applied to the crop as a weed prevention measure. In my view the product was in the nature of a consumable “cost of farming the land" within the meaning of clause 2.1, as distinct from hire for plant or equipment. Although it was already acquired by the first plaintiff, it was obviously acquired by the expenditure of money paid to a third party supplier. The parties contemplated retrospective expenditure by the words in clause 2.1: “Whether those Costs are incurred prior to or after the date of this Deed”. Similarly, clause 2.3 provides for the reimbursement of “any costs [which] have already been incurred by a party”. I will allow the cost in the amount of $907.50 as claimed by the first plaintiff.[40]
  1. [68]
    Therefore, I conclude that the first plaintiff’s cost of $907.50 for plastic mulch is a reimbursable cost pursuant to the Tomato Joint Venture agreement.

Other Expenses

  1. [69]
    The first plaintiff claims $4,499.24 for reimbursement of expenses paid for tomato seeds.
  1. [70]
    The defendants did not admit these claims for want of disclosure, and were restrained from leading evidence in relation to those facts pursuant to rule 165(2) of the Uniform Civil Procedure Rules 1999 (Qld).[41]
  1. [71]
    The expense has been vouched by disclosed documents admitted into evidence,[42]and I accept Mr Tindel’s evidence about the nature of the expenditure. I am satisfied that the first defendant’s expenditure is a species of cost within the meaning of clause 2.1 of the written part of the joint venture (by reference to the pre-existing, unexecuted Sweet Potato Joint Venture deed).
  1. [72]
    Therefore, the first defendant is entitled to reimbursement of $4,499.24, representing the first defendant’s share of the expenses as pleaded in 13(a) of the Amended Statement of Claim.

Second Tomato Joint Venture

  1. [73]
    The first plaintiff also had another share farming agreement with the second defendant in or about December 2012 to farm of tomatoes on the third defendant’s farm (“Second Tomato Joint Venture”). The parties dispute the terms of the Second Tomato Joint Venture, which are said to arise out of discussions and contemporaneous conduct and in the context of the pre-exiting Potato Joint Venture and Tomato Joint Venture.
  1. [74]
    The first plaintiff contends that the agreement was partly oral and partly implied by conduct. I do not accept that evidence. I prefer the evidence of the second defendant as to what was discussed and agreed at the commencement of the parties’ dealings. He testified (corroborated by Mr Bruno Cuda)[43]that the discussions in early February 2013 were to the effect that the Second Tomato Venture would “work along the arrangement” of the unexecuted deed and the parties proceeded on the basis that they would contribute their equipment without charge.[44]

Hire and use of plant & equipment

  1. [75]
    The first plaintiff claims fees for the use of its grader and harvesting equipment, used in the course and conduct of the farming operations, namely:
  1. $128,224.25 for the hire and use of the first plaintiff’s tomato grader; and
  1. $22,000.00 for the hire and use of the first plaintiff’s machinery.
  1. [76]
    I find that the joint venture parties intended to contribute to the joint venture, without reimbursement, the use of their own plant equipment and land. This is the effect of the oral evidence I’ve accepted. It is also consistent with the terms in the written part of the Second Tomato Joint Venture evidenced in the unexecuted deed. For the same reasons as already discussed, in my view, a charge for the first plaintiff’s equipment is not a species of “cost” within the meaning of clause 2.1.
  1. [77]
    Therefore, I conclude that the first plaintiff’s hire charge for the use of its grader and machinery is not a reimbursable cost pursuant to the Second Tomato Joint Venture agreement.

Other Expenses

  1. [78]
    The first plaintiff claims reimbursement for half of the expenses paid in the course and conduct of the farming operations, being:[45]
  1. One half of $44,412.61 for tomato seeds;
  1. One half of 16,818.65 for GTag system;
  1. $1,414.35 for accountancy fees; and
  1. $2,633.40 “for work undertaken by Darell Tindel”.
  1. [79]
    The defendants did not admit the first two claims for want of disclosure, and were restrained from leading evidence in relation to those facts pursuant to rule 165(2) of the Uniform Civil Procedure Rules 1999 (Qld). The claimed expenses have been vouched by disclosed documents admitted into evidence,[46]and I accept Mr Tindel’s evidence about the nature of the expenditure.
  1. [80]
    The defendants dispute the claim for accounting fees in the amount of $1,414.35 on the grounds that they never agreed to the engagement of those accountants to undertake accountancy work. The parties agreed to conduct the farming operations in a way that they would share costs and share profits. Proper accounting of sales, costs and reimbursements were integral to the joint venture farming operations and were not personal to the first plaintiff.
  1. [81]
    I am satisfied that the first three expenditure items are costs within the meaning of clause 2.1 of the written part of the joint venture.
  1. [82]
    The claim of $2,633.40 “for work undertaken by Darell Tindel”[47]is, I accept, a misdescription. I accept that the expense is more accurately described as the cost of plastic mulch (without any labour component).[48]I accept Mr Tindel’s evidence that the product was applied to the crop as a weed prevention measure. As I have already discussed above, the product was in the nature of a consumable “cost of farming the land” within the meaning of clause 2.1 and reimbursable as a respective cost under clauses 2.1 and 2.3 in the written part of the Second Tomato Joint Venture agreement. I therefore allow $2,633.40 for plastic mulch.
  1. [83]
    In summary, the first plaintiff is entitled to reimbursement of that proportion of costs representing the third defendant’s share of the expenses pleaded in 34(a) and (c) of the Amended Statement of Claim.

Second Plaintiff’s Labour

  1. [84]
    The second plaintiff claims for her labour in relation each of the joint ventures. She issued tax invoices on 4 November 2014 for:[49]
  1. $52,052.00 for “wages for sweet potatoes and tomatoes” in relation to the Sweet Potato Joint Venture and Tomato Joint Venture; and
  1. $17,732.00 for “wages for tomatoes crop” in relation to the Second Tomato Joint Venture.
  1. [85]
    The defendants deny any such agreement or entitlement to payment for her labour.
  1. [86]
    The second plaintiff alleges that an agreement to this effect was made in or about January or February 2013.[50]She contends that the oral part of the agreement consisted of a series of conversations between Mr Tindel (on behalf of the first plaintiff), the second plaintiff, the first defendant (on behalf of the third defendant) and the second defendant at the shed on the first defendant’s farm during January or February 2013.[51]It is pleaded in paragraph 38(b) of the Amended Statement of Claim that those parties agreed that:

(i)the second plaintiff had been and would continue to carry [on] our manual farming work during the course of the Joint Ventures;

(ii)the second plaintiff would render tax invoices to the first plaintiff, second defendant and third defendant for the work;

(iii)the first plaintiff, second and third defendants would pay the second plaintiff for the work as follows:

(1)the second plaintiff would undertake the work for $22.00 per hour;

(2)the first plaintiff and the third defendant would pay the second plaintiff in two equal shares for the Work undertaken in respect of the Sweet Potato Joint Venture and the First Tomato Joint Venture; and

(3)the first plaintiff and the second defendant would pay the second plaintiff in two equal shares for the Work undertaken in respect of the Second Tomato Joint Venture Agreement.

  1. [87]
    In late 2012 (before the alleged agreement) Mrs Tindel was finishing off work in Bundaberg and helped with farm labouring in the Sweet Potato Joint Venture in Atherton.[52]It wasn’t until she moved to the Atherton area “after the big floods in Bundaberg”[53]that she was able to dedicate her work to the farming operations for about 10 months between January 2013 and November 2013.
  1. [88]
    The second plaintiff was a shareholder but independently operated under her own Australian Business Number. Her work involved farm labouring work; co-ordinating the packing shed and workers; organising packing material and transport; and accounts work and communication with the accountant.[54]I accept that the second defendant’s applied hourly rate of $22 per hour seems is reasonable for that type of work.
  1. [89]
    The total amount of $69,784.00 claimed by the second plaintiff seems excessive. It equates to 3,172 hours over 10 months, or about 73 hours per week, or over 10 hours a day (using a seven day week). Rather strangely, the tax invoices are claimed as “wages” although the second plaintiff was never employed. Even stranger, those tax invoices were delivered about 12 months after the joint ventures were terminated. These matters were not satisfactorily explained.
  1. [90]
    Notwithstanding these matters, the second plaintiff’s labour claim heavily depends upon the testimony of Mr Tindel and the second plaintiff, Mrs Jacklyn Tindel. Apart from a general assertion of entitlement, Mr Tindel’s evidence failed to prove any agreement in early 2013 as pleaded. Further, the evidence of Mrs Tindel was confused and confusing. Although Mrs Tindel testified about discussions in January 2013, her evidence was broad and vague and fell well short of the pleaded case. The parties’ conduct is at best neutral. I prefer the evidence of Messrs Bruno Cuda and Nicola Cuda, and find that there was never any discussion or conduct which constituted a separate agreement about the second defendant’s labour.
  1. [91]
    I conclude that the second plaintiff’s claim must fail.
  1. [92]
    I should add that, if the second plaintiff’s labour was a cost incurred by the first plaintiff, then the outcome may have been different. That is, if the first plaintiff had incurred the cost of her labour, it would likely have been reimbursable as a cost of farming the land and/or “wages paid in relation to the production of the Produce” under clauses 2.1 and 1.1.6 of the unexecuted deed (being the written part of each joint venture).  But that is not the second plaintiff’s claim here, nor has the first plaintiff paid it.

Claims by the Defendants

  1. [93]
    The defendants have counterclaimed for various tax invoices issued by the first defendant for costs of farming the land pursuant to clause 2.1 of the unexecuted deed (being the written part of each joint venture):
  1. $5,720.00 to Rotary Hoe and power harrow ground and hire a tractor for the tomato crop on the third defendant’s land;
  1. $24,200.00 for living in the shed accommodation and for vehicle and machinery parked in the shed from October 2012 until November 2013;
  1. $4,500.00 for hire of the cold room and forklifts for the tomato crop; and
  1. $9,372.00 for a half share of the lease of the “Kochi land”.
  1. [94]
    The claims for $5,720.00 and $4,500.00 are in the nature of the parties’ labour and use of their plant equipment. Whilst I accept the work was carried out, I do not accept it is a reimbursable cost under the joint venture agreements. For reasons already expressed, my view is that the parties intended to contribute their own labour and equipment. This is evidenced by the first and second defendant’s testimony and the written part of each joint venture in clauses 2.1 and 1.1.6 of the unexecuted deed.
  1. [95]
    In relation to the claim for $24,200.00 for shed accommodation from October 2012 until November 2013, whilst it is clear that the first defendant allowed the Tindels to furnish and live in a room within the packing shed, it seems to me that the arrangement was informal and charitable in nature. These circumstances give rise to a strong implication that no payment was required for that accommodation. Therefore, I am not satisfied that the defendant has a claim arising from a residential tenancy or for the use and occupation of the shed for living or parking vehicles and machinery.
  1. [96]
    The claim will also fall outside the terms of the various joint venture agreements because they ought be properly characterised as a non-reimbursable contribution of the defendants’ plant and equipment.
  1. [97]
    The claim for $9,372.00 for a half share of the lease of the “Kochi land” is different.
  1. [98]
    Angel Kochi issued a tax invoice for $18,744.00 for the lease of the land from September 2013 until September 2014. That land is located at 9 Bravery Road in Atherton and is described in the unexecuted deed as Lot 4 on Registered Plan 718341. It formed part of the land to be farmed under the Sweet Potato Joint Venture. The parties contemplated leasing the land both in correspondence and within the unexecuted deed. Pursuant to clauses 2.1, 1.1.13 and 2.3 the “rental for leasing the land” was a cost to be shared equally by the parties.
  1. [99]
    The joint venture was mutually terminated on November 2013. The Final Crop Agreement provided for reimbursement of certain costs to the first plaintiff, but otherwise the first defendant carried the burden and benefit of the final crop. Therefore, I opine that the first defendant will carry the burden of the rental after November 2013.
  1. [100]
    For these reasons, I will allow $3,124 being one half of the rental cost for three months from September 2013 until November 2013.

What is the appropriate relief?

  1. [101]
    The final issue concerns the nature and extent of the remedies potentially available to the parties to vindicate their respective rights and entitlements under the failed joint ventures.
  1. [102]
    The first plaintiff claims for reimbursements and seeks declarations to distribute its share of the profits from the Sweet Potato Joint Venture, the Tomato Joint Venture and the Second Tomato Joint Venture being one half of the balance funds in the joint venture account after various adjustments.

Profit Distribution

  1. [103]
    There is no dispute that the parties are entitled to a distribution of their respective shares of profits after accounting for income expenses and various adjustments.
  1. [104]
    So much is evidenced by clause 2.5 of the written part of the various joint venture agreements being the unexecuted deed. The Final Crop Agreement also solidified the parties’ arrangements to effect the termination and winding up of the Sweet Potato Joint Venture.
  1. [105]
    It is common ground that each joint venture has been brought to an end, and that money is quarantined in bank accounts pending determination of this dispute. The plaintiffs’ approach would be simple enough had the parties collaboratively maintained proper accounts and ensured certainty about the state of those accounts.
  1. [106]
    The first defendant’s accountant, Mr Samways, on the instructions of Mr and Mrs Tindel, administered the joint venture accounts. Mr Samways provided a report[55]and gave evidence in the trial. Whilst I accept he dutifully acted on his instructions, I am far from confident about the nature and accuracy of those instructions and the characterisation and vouching of relevant expenditure and adjustments.  My concerns are further heighted by the apparent need for adjustments due to intermingling in two bank accounts despite there being three separate and distinct joint ventures.
  1. [107]
    In those circumstances, I decline to make the declarations sought by the plaintiffs.

Taking of Account

  1. [108]
    The defendants contend that the appropriate relief is an order for the taking of an account in common form in respect of each joint venture.
  1. [109]
    The defendants argue that if an account is the appropriate remedy to determine the fallout of a failed relationship, it presents for the parties an encompassing remedy, which should apply to all aspects of their controversy. As Hutley JA observed in Colin D Young Pty Ltd v Commercial and General Acceptance Ltd:[56]

‘… a party cannot, as it were, have little bits of accounts. There is one account, and one account only, and the issue is what is owed, and what is not owed. The declaratory procedure cannot be used to get declarations about little bits of accounts because the proceedings may become, in relation to a total account, otiose.’

  1. [110]
    Even absent a fiduciary relationship inter se, the remedy of taking an account remains available.[57]An account is also indicated where the joint ventures exist between two or more parties; the relationship fails without attributable blame;[58]and the right is not displaced by the agreement.[59]Further, an account is warranted here given my concerns about the veracity of instructions and vouching, and the intermingling of funds between three separate and distinct joint ventures.
  1. [111]
    Further orders and directions will be required to facilitate the orderly conduct of the accounting exercise. The first plaintiff ought first present accounts taking heed of my specific findings about the current controversy.

Conclusion and Orders

  1. [112]
    The taking of an account will entrench the parties in disputation and involve significant cost, delay and inconvenience. So before embarking on that course, I am prepared to allow the parties an opportunity to resolve the matter by negotiation and mediation pursuant to rule 320(b) of the Uniform Civil Procedure Rules 1999.
  1. [113]
    For these reasons, I make the following orders:
  1. The proceeding will be listed for further or final orders in accordance with this judgment including costs at 9:00 am on 16 September 2016.
  1. Unless the proceeding is otherwise resolved, the first plaintiff, by its officers or shareholders, and all defendants are directed to attend, participate in, and act reasonably and genuinely in, a mediation to be conducted at Cairns at a time and place determined by the mediator on or before 15 September 2016.
  1. The mediator is Andrew Philp QC. If he is not available, then an alternative mediator will be nominated by the court unless otherwise agreed by the parties.
  1. A copy of this judgment must be provided to the mediator.
  1. The estimated maximum period of the mediation is 1 day.
  1. The parties will negotiate a fee with the mediator.
  1. The parties will pay the following proportions of the mediator’s fees:
  1. (a)
    first plaintiff – one third;
  1. (b)
    first and third defendant – one third; and
  1. (c)
    second defendant – one third.
  1. The parties must pay their respective proportions of the fees prior to commencement of the mediation unless otherwise agreed with the mediator.
  1. The mediator is to be informed of the appointment by the first plaintiff’s lawyers.
  1. The parties have liberty to apply upon giving the other parties at least 3 business days’ notice.
  1. Costs are reserved.

Judge D. P. Morzone QC

Footnotes

[1]Amended Statement of Claim, para 5

[2]T2-80/30 – T2-81/5

[3]T2-28/31 - T2-29/45

[4]Reply and Answer, para 2(a)

[5]Amended Defence and counter-claim, para 2

[6]Amended Defence and counter-claim, paras 4B and 12A

[7]Exhibit 1, p 1

[8]Exhibit 1, p 10

[9]Exhibit 1, p 12

[10]Exhibit 1, pp. 13 - 23

[11]T2-24/19-21

[12]T2-25/5-15

[13]T2-25/20-25

[14]Compare, for example, Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65 at [262] - [266] and Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 at [54]

[15]Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216 at 237

[16]Cf. Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at [25]; and, Rushton (Qld) Pty Ltd v Rushton (NSW) Pty Ltd [2003] QSC 8 at [14]

[17]Compare Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216 at 237; Rushton (Qld) Pty Ltd v Rushton (NSW) Pty Ltd [2003] QSC 8 at [14]. I note the qualifications referred to in Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 at [65] et seq

[18]Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 79 ALJR 129 at [40] to [47]

[19]Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95 at [25] and [26] per Gaudron, McHugh, Hayne and Callinan JJ

[20]Cf. Rushton (Qld) Pty Ltd v Rushton (NSW) Pty Ltd [2003] QSC 8 at [13] and [14] Muir J and Raward v Vine Nominees Pty Ltd [2001] QSC 494 at [71]

[21]Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95 at [25] and [26]

[22]Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 79 ALJR 129 at [40] to [47]

[23]For example, Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119, and compare Marek v Australian Conference Association Pty Ltd [1994] 2 Qd R 521 at 527; Rossi and Ors v Vu [2005] QSC 373; and Competitive Funerals Pty Ltd  v Singh Rai [2005] NSWSC 1171 at [111]

[24]Compare Marek v Australian Conference Association Pty Ltd [1994] 2 Qd R 521 at 527; Rossi and Ors v Vu [2005] QSC 373; and Competitive Funerals Pty Ltd  v Singh Rai [2005] NSWSC 1171 at [111]

[25]Further Reply and Answer para 2(b)(iii)

[26]Cf. Fazio v Fazio [2012] WASCA 72

[27]Cf. Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209 at 213-214

[28]Amended Statement of Claim 5(b)(ii)

[29]Exhibit 1, Docs. 4- 101

[30]Amended Statement of Claim, paras 18 and 19

[31]Amended Statement of Claim, para 18(a); and Further Amended Defence & Counter-claim of the Defendants, para 7(a).

[32]Amended Statement of Claim, para 19; and Further Amended Defence & Counter-claim of the Defendants, para 8.

[33]Exhibit 1, docs. 4 - 101

[34]T1-36/35 – T1-37/19

[35]T2-41/30-34

[36]Exhibit 1, p. 217

[37]T2-29/19 - 44

[38]T2-80/30 - 47

[39]T2-42/5 - 26

[40]Exhibit 1, doc. 125

[41]Further Amended Defence and Counter-claim, para 5(a)

[42]Exhibit 1, docs. 118 - 122

[43]T2-80/30 - 47

[44]T2-80/30 - 47

[45]Amended Statement of Claim, para 34(a) and (c)

[46]Exhibit 1, docs. 4- 101

[47]Amended Statement of Claim, para 34(c)

[48]Exhibit 1, p. 267; and T1-46/37 – T1-47/8

[49]Amended Statement of Claim, paras 39(a) and 39(b)

[50]Amended Statement of Claim, para 38

[51]Amended Statement of Claim, para 38(b)

[52]T1-76/40 – T1-77/20

[53]T1-77/41-42

[54]T1-76/20 – T1-77/19; and T1-78/8-24

[55]Exhibit 2

[56]Colin D Young Pty Ltd v Commercial and General Acceptance Ltd (Unreported. NSW Ct of App. 24 August, 1982) cited with approval in Adams v Bank of New South Wales [1984] 1 NSWLR 285 at 296 and Marcolongo v Mattuisi [2000] NSWSC 834 at [71]. Compare Mulherin v Quinn Villages Pty Ltd [2007] QSC 231 at [22]

[57]Marcolongo v Mattuisi [2000] NSWSC 834 at [70] and [71]

[58]Compare McKay v McKay [2008] NSWSC 177 at [16]

[59]Cf. Marcolongo v Mattuisi [2000] NSWSC 834 at [71]; Russo v Russo [2015] NSWSC 17, at [175]

Close

Editorial Notes

  • Published Case Name:

    Top Line Produce Pty. Ltd. & Anor v Cuda & Ors

  • Shortened Case Name:

    Top Line Produce Pty. Ltd. v Cuda

  • MNC:

    [2016] QDC 179

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    20 Jul 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adams v Bank of New South Wales (1984) 1 NSWLR 285
2 citations
Jump To
Cite 1 - (1984) 1 NSWLR 285
Cite 2 - (1984) 1 NSWLR 285
Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216
3 citations
Jump To
Cite 1 - [1986] 2 Qd R 216
Cite 2 - [1986] 2 Qd R 216
Cite 3 - [1986] 2 Qd R 216
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
2 citations
Jump To
Cite 1 - (2001) 53 NSWLR 153
Cite 2 - (2001) 53 NSWLR 153
Competitive Funerals Pty Ltd v Singh Rai [2005] NSWSC 1171
3 citations
Jump To
Cite 1 - [2005] NSWSC 1171
Cite 2 - [2005] NSWSC 1171
Cite 3 - [2005] NSWSC 1171
Day Ford Pty Ltd v Sciacca[1990] 2 Qd R 209; [1990] QSCFC 1
2 citations
Jump To
Cite 1 - [1990] 2 Qd R 209
Cite 2 - [1990] 2 Qd R 209
Dennis Pethybridge v Stediks Holdings Pty Ltd [2007] NSWCA 154
2 citations
Jump To
Cite 1 - [2007] NSWCA 154
Cite 2 - [2007] NSWCA 154
Ermogenous v Greek Orthodox Community of SA Ltd (2002) 209 CLR 95
3 citations
Jump To
Cite 1 - (2002) 209 CLR 95
Cite 2 - (2002) 209 CLR 95
Cite 3 - (2002) 209 CLR 95
Fazio v Fazio [2012] WASCA 72
2 citations
Jump To
Cite 1 - [2012] WASCA 72
Cite 2 - [2012] WASCA 72
Marcolongo v Mattuisi [2000] NSWSC 834
4 citations
Jump To
Cite 1 - [2000] NSWSC 834
Cite 2 - [2000] NSWSC 834
Cite 3 - [2000] NSWSC 834
Cite 4 - [2000] NSWSC 834
Marek v Australasian Conference Association Pty Ltd [1994] 2 Qd R 521
3 citations
Jump To
Cite 1 - [1994] 2 Qd R 521
Cite 2 - [1994] 2 Qd R 521
Cite 3 - [1994] 2 Qd R 521
McKay v McKay [2008] NSWSC 177
2 citations
Jump To
Cite 1 - [2008] NSWSC 177
Cite 2 - [2008] NSWSC 177
Mulherin v Quinn Villages Pty Ltd [2007] QSC 231
2 citations
Jump To
Cite 1 - [2007] QSC 231
Cite 2 - [2007] QSC 231
Mushroom Composters Pty Ltd v IS and DE Robertson Pty Ltd [2015] NSWCA 1
2 citations
Jump To
Cite 1 - [2015] NSWCA 1
Cite 2 - [2015] NSWCA 1
Raward v Vine Nominees Pty Ltd [2001] QSC 494
2 citations
Jump To
Cite 1 - [2001] QSC 494
Cite 2 - [2001] QSC 494
Rossi v Vu [2005] QSC 373
3 citations
Jump To
Cite 1 - [2005] QSC 373
Cite 2 - [2005] QSC 373
Cite 3 - [2005] QSC 373
Rushton (Qld) Pty Ltd v Rushton (NSW) Pty Ltd [2003] QSC 8
4 citations
Jump To
Cite 1 - [2003] QSC 8
Cite 2 - [2003] QSC 8
Cite 3 - [2003] QSC 8
Cite 4 - [2003] QSC 8
Russo v Russo [2015] NSWSC 17
2 citations
Jump To
Cite 1 - [2015] NSWSC 17
Cite 2 - [2015] NSWSC 17
Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65
2 citations
Jump To
Cite 1 - [2007] NSWCA 65
Cite 2 - [2007] NSWCA 65
Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119
2 citations
Jump To
Cite 1 - [2015] QSC 119
Cite 2 - [2015] QSC 119
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 79 ALJR 129
3 citations
Jump To
Cite 1 - (2004) 79 ALJR 129
Cite 2 - (2004) 79 ALJR 129
Cite 3 - (2004) 79 ALJR 129

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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