Lindsay-Owen v Associated Dairies Pty Ltd [2000] NSWSC 1095

New South Wales Supreme Court

CITATION : Lindsay-Owen v Associated Dairies Pty Ltd [2000] NSWSC 1095 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3968/00 HEARING DATE(S) : 16 & 17 October and 9 & 10 November 2000 JUDGMENT DATE : 10 November 2000

Gregory Hamilton Willoughby Lindsay-Owen (P) PARTIES : Associated Dairies Pty Limited (D1) Jeanette Blanche French (D2) Ruth Lindsay (D3) JUDGMENT OF : Hamilton J

COUNSEL : M J Stevens (P) D M Loewenstein (D1-3) SOLICITORS : P A Somerset & Co (P) Kitamura & Associates (D1-3) CATCHWORDS : CONTRACTS [126] - General contractual principles - Discharge - Impossibility of performance - In what cases performance excused - Contract giving pre-emptive right to purchase land, stock and equipment and statutory milk quota of dairying business - Abolition of milk quota. LEGISLATION CITED : Dairy Industry Act 1979 Dairy Produce Act 1986 (Cth) Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 CASES CITED : Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Davis Contractors Ltd v Fareham UDC [1956] AC 696 Laws of Australia tit Contracts Section 7.8 Discharge [42], Martin Davies, J L R Davis and M P Ellinghaus DECISION : Contract frustrated.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 10 NOVEMBER 2000

3968/00 GREGORY HAMILTON WILLOUGHBY LINDSAY-OWEN v ASSOCIATED DAIRIES PTY LIMITED & ORS

JUDGMENT

1 HIS HONOUR: These proceedings arise out of a contract between the plaintiff and the defendant, that is embodied in a deed dated 23 April 1994, called the Clydesdale Dairy Farm Deed ("the deed"). Prior to the execution of the deed there had been disputes among various parties concerning its subject matter. The present plaintiff had commenced proceedings against the first defendant in the Federal Court, which had not proceeded to finality. Those proceedings, and the disputes between the parties generally, were settled by the deed. By the deed the first defendant granted rights of pre-emption to the plaintiff over what was called "the business". The terms of the deed granting those rights were perhaps a little unconventional but, in essence, the effect of the deed was to provide by clauses 2.2 and 2.3 respectively, that, if the first defendant proposed to sell the business at auction, he should give the plaintiff 21 business days of notice of that auction and, if the sale were to be by private treaty, it should communicate to the plaintiff the price at and the terms and conditions on which it proposed to sell the interest, so that he might himself purchase on those terms if he desired. 2 The deed contained the following definitions in cl 1.1: "'Business' means the dairy farming activity carried on by the Clydesdale Grantor [the first defendant], the Clydesdale Dairy Farm and the milk quota attached to the dairy farming activity. ... 'Clydesdale Dairy Farm' means the land comprised in Certificate of Title Folio Identifiers … with improvements, equipment and stores."