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 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 1. 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. 2. 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." 1. 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." 1. 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. 2. 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. 3. 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.