Agricultural and Rural Finance Pty Limited & Anor v John Edward Atkinson & Ors [2010] NSWSC 635

New South Wales Supreme Court

CITATION : Agricultural and Rural Finance Pty Limited & Anor v John Edward Atkinson & Ors [2010] NSWSC 635

HEARING DATE(S) : 6/4/10, 13/4/10 - 16/4/10, 19/4/10, 21/4/10, 22/4/10, 28/4/10, 29/4/10, 3/5/10 - 6/5/10, 10/05/10 - 12/05/10, 18/05/10, 19/05/10

JUDGMENT DATE : 17 June 2010

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

DECISION : Defendants Contract Review Act claims to be dismissed. Defendants punctuality cases to be dismissed

CATCHWORDS : Contract – Unjust contracts - Proceedings constitute residue of test case having travelled through a decision at first instance (Agricultural and Rural Finance Pty Ltd v Atkinson and others) [2006] NSWSC 202, a decision before the New South Wales Court of Appeal (sub nom Gardiner v Agricultural and Rural Finance Pty Ltd) [2007] NSWCA 235 and the decision of the High Court of Australia (sub nom Agricultural and Rural Finance v Gardiner) (2008) 238 CLR 570 - Remaining issues concern defendants' Contracts Review Act and punctuality cases - Whether Act applies - Whether defendants entered into contracts in the course of or for the purpose of a trade, business or profession within the meaning of s 6(2) - Proper scope of that exclusion - Whether it covers investment contracts entered into as a matter of personal finance - Whether the farming exception contained in s 6(2) applies to the first defendant - Proper scope of that exception - Ellison v Vukicevic (1986) 7 NSWLR 104 at 111 applied - Relevant steps involved in applying s 7(1) of the Act - Framework for determining whether a contract is unjust within the meaning of s 7(1) - Point at which it is determined whether a contract is unjust - Whether the Court focuses on the particular contract or the overall transaction - Principles concerning meaning of 'unjust' under the Act - Factors contained in s 9(2) are not exhaustive - Whether, if it is established that provisions of one contract are unjust, it is possible to obtain relief in respect of a related contract - Public interest consideration under s 9(1) - Baltic Shipping Company v Dillon "Mikhail Lermontov" (1991) 22 NSWLR 1 applied - Provisions in question were not subject of negotiation, whether negotiation was reasonably practicable - Purpose of s 9(2)(b), 9(2)(c) - Whether provisions in question were particularly complex - Whether provisions in question reasonably necessary for protection of legitimate interests of second cross defendant, the indemnifier - Whether loss of indemnity was a grossly disproportionate consequence in the event of late payment of interest and principal payments - Contracts Review Act 1980 ss 4, 6, 7, 9,15, 16, Sch 1 - Onus of proof - Whether issue was decided in Gardiner Test Case – Defendants bear onus of proving punctual performance - Evidence - Probative value of evidence substantially outweighed by danger that evidence would if allowed by unfairly prejudicial to the plaintiff and/or be misleading or confusing and/or cause or result in undue waste of time - Evidence Act 1995 s 69(2)