Blain & Anor v Blain Dairying Pty Ltd as trustee of The Blain Trading Trust & Anor [2025] VCC 451

Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420;

Howes v Miller [1970] VicRp 68; [1970] VR 522;

Kay's Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VicRp 62; [1962] VR 429;

Landale v Menzies [1909] HCA 48; (1909) 9 CLR 89;

Moore v Dimond [1929] HCA 43; (1929) 43 CLR 105;

National Australia Bank Ltd v Blacker [2000] FCA 1458;

Neave v Trenerry [1999] NTSC 3;

Paynter v Willems [1983] VicRp 98; [1983] 2 VR 377;

Platemaster Pty Ltd v M & T Investments Pty Ltd [1973] VicRp 7; [1973] VR 93;

Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 277 CLR 115;

Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516;

Simos v National Bank of Australasia Ltd and Guelman (1976) 10 ACTR 4;

TEA (1983) Ltd (In Liq) v Uniting Church (NSW) Trust Association [1985] VicRp 12; [1985] VR 139;

TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576;

Tilley v Official Receiver [1960] HCA 86; (1960) 103 CLR 529;

Turvey v Dentons (1923) Ltd [1953] 1 QB 218;

Westpac Banking Corporation v Tanzone Pty Ltd [2000] NSWCA 25; (2000) 113 NSWLR 73

Judgment: 1. Within 14 days the parties must bring in short minutes to give effect to these reasons.

1. Relations between brothers have proved potentially problematic since time immemorial, as witness the story of Cain and Abel in Chapter 4 of the Book of Genesis. In this proceeding, the Court has to resolve a dispute between an elder brother, who was an established dairy farmer, and his younger brother, whom he effectively "sponsored" into a joint venture. The bitterness which now exists between the brothers has led to this proceeding's being fought with a degree of venom and perhaps pettiness that is uncharacteristic in purely commercial disputes. The case has been fought over 20 sitting days. In dispute between the two sides are a collection of minor matters which add up to something more significant, but scarcely of the order of magnitude that would justify the vast expenditure of legal costs which must have occurred. The pleaded case includes a host of claims and counterclaims for minor items such as a tape measure valued at $29.95, a caulking gun valued at $25.95, and a roll of 1-inch "poly pipe" valued at $198. Many, but not all, of these minor items were abandoned in the course of the trial. Car wrecks which were the subject of abortive restoration projects in the 1990s were fought over as valuable assets. They became bargaining chips or prisoners to be exchanged.
2. An area near Heytesbury known as the "Heytesbury Settlement" was opened up for dairy farming in the 1960s. (Transcript ("T") 165, Lines ("L") 4-6) Mr Darin Blain and his younger brother, Mr Craig Blain, who are respectively one of the plaintiffs and one of the defendants in this proceeding, were brought up by their parents on a dairy farm in this "settlement", which has been referred to as "Farm 2" in the course of the present proceeding.
3. In 1993, Mr Darin Blain married, forming a business partnership to conduct a dairy farm of 178 acres at 491 Melrose Road, Cooriemungle. The closest town to this property is Timboon with a population of approximately 1,000. (T1296, L7-10)
4. The younger brother, Mr Craig Blain, finished his formal education in 1994, and in 1995 commenced a motor mechanic's apprenticeship in Melbourne and moved to Melbourne. After some years resident in Melbourne, he moved to Warrnambool, which is a 40-minute drive from Timboon. He worked as a casual bartender at The Gallery nightclub in Warrnambool, then, from September 2000, he departed overseas for a period of three and a half years. On his return to Australia, he worked as a motor mechanic at Timboon Motors in Timboon. (T1294, L21 - T1295, L26) He then took up a store manager's position with Repco Auto Parts in Warrnambool for approximately 18 months, eventually returning to Timboon Motors as service manager. (T1295, L29 - T1296, L6) Back living and working near the home where he had been reared, Mr Craig Blain said that his elder brother, Darin, "was a very good friend if not probably a best mate ... I could see Darin was doing well on the farm and I guess I aspired to achieve the sort of thing that he had achieved." (T1296, L22-26)
5. In 1992, Mr Darin Blain became registered as proprietor of the land comprised in Certificate of Title Volume 8941, Folio 768 (Court Book ("CB") 612-13), being the property described as Farm 1 and adjacent to Farm 2. According to Craig, his brother told him that his fulltime workers, Gary and Jenny, were leaving and this would create an opportunity for Craig and his wife, Talia, to come home to the farm and become dairy farmers. (T1296, L29 - T1297, L2) Craig said "I jumped at it." (Ibid) The proposition made by Darin, according to Craig, was "that he would just pay us a management fee and we would employ another staff member to cover his role or duties, especially dairy duties." (Ibid, L16-19)
6. It was at this time that Craig established the Company which is the first defendant in this proceeding as trustee of a family trust. He summarised the situation as being that he "started off as an employee". (Ibid L24) If, by that, he meant that he became an employee of his brother's partnership, this was incorrect. Craig's Company, the first defendant, was supplying management services to his brother's partnership and if Craig was an employee of anyone, it was his Company, the first defendant. These events took place in 2009. (T1298, L27-29) According to Craig, "Darin said he would pay us a fee which I think was $100,000 plus GST, and he said 'you can employ a full-time employee, pay them what you wish out of that $100,000 and basically, whatever is left over is yours'." (T1299, L14-18) Craig saw his role as that "we were going to manage day-to-day ... running of the dairy farm. So milkings, feedings and the like. Obviously ... I relied on a lot of Darin's knowledge and guidance." (Ibid, L26-29)
7. In addition to owning Farms 1 and 2, Darin owned another rural property in the area, being the land comprised in Certificate of Title Volume 10894, Folio 717, another rural property in the same area but not adjacent to the farms, being the land comprised in Certificate of Title Volume 9011, Folio 643 and described as "Out Paddock 1", which was transferred to Darin and his wife, Sally, on 30 April 2007. (CB 622) In 2009, therefore, Darin, either solely or jointly with his wife, owned Farms 1 and 2 and Out Paddock 1. (T1299, L30 - T1300, L3) Under the 2009 arrangement, Craig's Company was the sole employer and there were no employees of the partnership. (T1300, L5-12) Craig said that at this point his brother "had a crook back and the dairy was what was probably the worst, the worst duty on the farm that caused the most irritation to his back." (T1301, L11-13)
8. Around 2011, according to Craig, Darin told him that "he had been to a doctor's appointment and a doctor had told him that if he doesn't get off the farm he will be in a wheelchair in 12 months." (T1301, L27-29) Craig continued "I guess that was what kicked things into gear about talking about a joint venture." (Ibid L30-31) Darin denied that he entered into a joint venture arrangement with his brother as a result of medical advice. Cross-examined by counsel for the defendants, Mr O'Haire, Darin said that the impetus to establish a joint venture with his brother derived not from his receiving medical advice that he "needed to get off the farm", but because of particularly favourable milk prices. (T722, L22-24) Darin did concede, however, that he had a "crook back". Darin spent many days in the witness box being examined and cross-examined, giving his evidence throughout from a standing position. He said "I just don't like sitting down all day. It's not good for your posture and I prefer to stand ..." (T1083, L4-6) He conceded he had a "crook back" and had received advice from a surgeon that he was "in probably the wrong profession for it". (Ibid L18-19) Nevertheless, whilst not in the witness box he was able to sit behind his counsel for the balance of the hearing without apparent discomfort.
9. According to Darin, the first conversation between the brothers as to a joint venture "would've been in July [2011] because that would've been [when] the milk price was good, [a] good time to get in, we will set up a CB-type loan and talk to Nick [Sinclair of Rabobank]". (T334, L3-6) One of the matters which needed to be resolved was the price at which the existing dairy herd owned by the partnership would be dealt with for joint venture purposes. According to Darin, he believed that the proper figure per head of the dairy herd was $2,000, but he discounted it to $1,800 and provided for a herd lease in favour of his brother's Company, attributing a value of $1,800 per head with an "earn rate" of 7 per cent. (T334, L11-16) With Craig's Company leasing the herd of cattle, it needed either to own a farm or lease a farm unless the herd was to be agisted. (T335, L2-4) Darin said the structure of the venture "was going to be a partnership but it didn't work out that way so it was just a joint venture, as in we didn't run separate partnership accounts or anything else. It was just easier to run it as a joint venture ... all expenses were split down the middle, half the milk cheque went each way. It's just easier. Each party did their own tax returns and no need to have a partnership tax return between the companies [sic] or between the partners." (T335, L7-16) Even if the arrangement might have been characterised as a partnership, as defined in the Partnership Act 1958, it was not treated as such by the brothers. (Ibid, L17-19) Certainly, Darin and his brother would seem to have structured their joint venture without professional advice from a solicitor or accountant. Craig had already established a trading discretionary trust in 2009, but there seems to have been no further structural advice given when the management arrangements entered into in 2009 were translated into the joint venture. (T336, L4-20)
10. Darin said he decided to sell Farm 1 to his brother because he "had owned that for more than 15 years so that the capital gains obligations were less. That Farm 2 was inside the 15 year ownership so the capital gain would have been 50 per cent more." (T336, L24-27) Craig was already living in the farmhouse on Farm 1 and Darin and his wife lived in the farmhouse on Farm 2. (Ibid, L29-30) The price for the Company to purchase Farm 1 was set at $1.07 million. Darin said "that was determined on the price of $6,000 per acre and basically that it was a highly profitable farming operation and that was about where its value sat." (T337, L10-15) Darin said that this price was not a point of negotiation. He nominated it and Craig accepted it. (Ibid, L16-19)
11. Craig agreed that he was not bringing any capital to the joint venture. He was receiving a "deal" that would not likely have been offered to anybody other than a family member. The parameters of the joint venture were laid down by elder brother, Darin, and he, as the younger brother, simply accepted them. (T1314, L16-23)
12. As to the machinery to be used by the dairying joint venture, according to Darin "Machinery was made available [by the partnership]. It was maintenance and repairs would be 50 per cent and we later had a discussion ... because I had all the machinery so it was fine but down the track we would have to look at replacement values and that would be dealt with at a later date ..." (T339, L21-27) The arrangement which Darin said was reached would be one "whereby both parties would chip in to replace things that had worn out." (T339, L30 - T340, L1) As will appear, the existence or otherwise of a term in the joint venture to this effect is one of the central controversies in the proceeding. This issue, according to Darin, was discussed and agreed upon "later" - "the machinery was all fairly new so I knew that it wouldn't have to be replaced for a number of years ... I didn't know the joint venture was only going to last seven years. ... I would've expected it to have lasted longer but there would have been a period as to machinery cycles from new down to used, it would have had to have been replaced and you keep going." (T340, L5-12) I pressed Darin to indicate a year in which this apparently ex post facto term was agreed upon between the brothers, but I did not understand him to give a direct and a definitive answer. (Ibid, passim) The cost of repair was an operating expense and, according to Darin, was therefore to be shared 50/50. (T341, L30 - T342, L3)
13. Commencing a dairying joint venture on a particular day necessarily raises transitional issues. The milk collected on the morning of the first day will have been at least partly derived from the milk taken the previous (pre joint venture) evening. These matters do not appear to have been discussed in 2011. (T342, L27-28)
14. As the terms of the joint venture were being discussed there was a spirit of optimism, such that no specific arrangements were made as to what would happen at its termination. (T343-344, passim) Darin believed that issues such as fertiliser to be applied to the two farms (Nos 1 and 2) being used jointly "would have been" discussed. (T345) Darin said:

"What was explained to Craig very early on was that ... both farms and the out-paddock - both out-paddocks after that, they were all treated exactly the same in fertiliser output, not so much re-sowing but maintenance, tracks, fencing. I see so many people that have out-paddocks that don't apply the correct amount of fertiliser, they don't get enough grass, obviously affecting pasture growth and silage production and all that, and feed for the heifers. So you treated every one [scil, each parcel of land] the same, you didn't put less on the out-paddocks which is mainly what we are talking about, the out-paddocks, because you actually create less fee [sic - scil feed]." (T345, L29 - T346, L10)

1. On 18 August 2011, Darin and his wife became registered proprietors of a further parcel of land, being the land comprised in Certificate of Title Volume 2837, Folio 344, in Waarre Road, which is described as "Out Paddock 2". This out paddock was also to be part of the dairying joint venture, and in due course was to be the location of the residence for Darin and his wife.
2. To enable the joint venture to be established, Craig and his wife had to raise their contribution by a combination of vendor finance from Darin and/or the partnership and external borrowing from Rabobank. The partnership was an established customer of Rabobank. By a letter dated 14 October 2011, Rabobank made an offer of a facility described as "new all in one account" with face value of $830,000 consisting of a property purchase loan of $685,000 relative to Farm 1, $125,000 "Refinance Homeside Lending" (that is, Craig and Talia's home in Warrnambool). The security required was as follows:
   • Registered first mortgage from Craig over Farm 1.
   • Registered first mortgage from Craig over his Warrnambool residence.
   • Fixed and floating charge over the assets of Craig's Company and an unlimited guarantee from Craig's Company.
3. The letter included a series of Special Conditions divided into "Pre Settlement" and "Post Settlement". The first of the Pre Settlement Special Conditions was as follows:

"1) Prior to settlement the Borrower must provide Rabobank with a copy of the executed written agreement ["the Agreement"] (which is satisfactory to Rabobank in its sole discretion) between Darin William Blain and Sally Louise Blain and Craig Blain and Blain Dairying Pty Ltd as Trustee for The Blain Trading Trust in relation to the vendor loan and cow lease purchase which is to include but not be limited to:

iii. Use of out paddock and plant and equipment by the Borrower/Security Provider(s)

iv. Use of dairy by the Borrower/Security Provider(s) to milk their cows

1. This letter was signed by Mr Nick Sinclair as account manager. (CB 643-646) The written agreement between Craig's Company and the partnership referred to in the Special Condition, which was to be to the bank's satisfaction in its sole discretion, seems to have been drafted by Mr Sinclair. He sent an email to Craig's wife Talia and to Darin on 18 October 2011 covering the "start of draft agreement. Very rough at this stage but a start at least ..." He invited the brothers and their wives to "amend, add, or rewrite to your agreement and understanding." Mr Sinclair added, "You may want to run a final version past your solicitor or engage them to help draft it up." (CB 654-5)
2. Some 10 days later, on 28 October 2011, Mr Sinclair sent an email covering what he described as "an updated version [of the agreement] for you to consider following our discussions the other day. Please have good look at it and run past your solicitor before finalising. Make any amendments you like." (CB 656-658)
3. Presumably because the original letter of offer had lapsed and expired, Rabobank issued a further letter of offer to the same effect as the original one, including the amount towards the purchase of Farm 1, the refinance of Craig's Warrnambool residence, and $20,000 working capital, dated 29 October 2011. (CB 660-665) Craig, his wife, and their Company, accepted this offer by annotation dated 29 November 2011. (CB 665) Craig's wife, Talia, sent an email to Mr Sinclair stating:

"We have a meeting with Marcus [the Blain family's solicitor] on Monday to discuss and sign contracts. We will bring in the signed agreement between Fang [that is, Darin] and ourselves. Please let us know if there is anything else you need from us prior to Monday." (CB 666)

1. Rabobank's securities included a document styled "Farming Agreement" expressed to be between "Darin & Sally Blain and Craig & Talia Blain which incorporates Blain Dairying P/L ATF The Blain Trading Trust." The document, dated "5-12-11", purports to be signed by Darin and his wife and Craig and his wife, and is in the following terms:

This agreement is between Darin & Sally Blain and Craig & Talia Blain which incorporates Blain Dairying P/L ATF The Blain Trading Trust.

The land 72.11Ha located at 491 Melrose Rd, Cooriemungle Certificate of Title 8941/768 (currently owned by Darin Blain) will be purchased by Craig Blain for $1,070,000.

Bank finance will be provided by Rabobank for the amount of $685,000. The balance of the purchase price of $385,000 will be provided by D&S Blain. Finance provided at 7% interest only for a period of 7 years. There will be an option to extend this for a further term to be negotiated at the end of the initial 7 year period. D Blain will formalise a Registered Second Mortgage.

At Rabobanks request the repayments of the vendor loan will be subordinated.

135 cows, 35 heifers and 35 calves are being purchased for a total of $300,500. D&S Blain will provide the finance for the cows on a lease purchase facility. Terms are repayable over 7 years @ 7% p.a. with a $50,000k residual. The residual can be repaid in full or over a further term to be negotiated if required.

Ownership of the cows will not transfer until final payment is made. C&T Blain agree not to mortgage the cattle to any third party without D&S Blains consent.

At Rabobanks request the repayments of the lease purchase facility will be subordinated.

For the purposes of this agreement the initial herd size will be 270 cows and replacements. Ownership will be on the basis of 50% of the herd and replacements at any point in time and if direct ownership is required and will be drafted 50-50.

Expenses specific to each property will be responsibility of owners (i.e. rates, insurance)

The current dairy is located on property owned by D&S Blain. If required and whether or not this agreement is in place, the cows will be able to be milked from this dairy.

All plant and equipment currently owned by D&S Blain and used on the current dairyfarm will continue to be available for use at no additional capital cost to C&T Blain. Ongoing repair and maintenance will be paid for on a 50/50 basis.

The business will continue to have use of the outpaddock located on Waarre Rd. There will be no additional payment/lease for use of this block by C&T Blain. Expenses to maintain this property will be paid for on a 50/50 basis. Capital expenses will be the responsibility of owner unless otherwise agreed.

If for any reason either party wishes to sell, the other party will have first right of refusal of purchase. Land to be purchased at fair market value arrived at either by agreement between the parties or settled as per appointment of a Valuer agreed by both parties.

It is recognised and agreed that the cows have been purchased at a discount to market value in the initial transaction. If cows are being repurchased by D&S Blain, the current market value will be used as a base less 25%. Market value to be as agreed by both parties or by appointment of an agreed stock valuer.

If this agreement expires, is not renewed or is varied in any way the parties agree to notify Rabobank.

1. This document is obviously derived from the initial "rough draft" propounded by Mr Sinclair and appears not to differ materially from the second version which he emailed to the parties.
2. According to Craig, he and his wife went to the offices of the family solicitors, Jellie McDonald in Warrnambool, on 5 December 2011, to sign documents for the purposes of the sale of Farm 1 and the loan from the bank and the lease of cows, attending Mr Marcus Malseed. (T1320) Mr Malseed gave them advice as to the various documents, including in particular a clause in the herd lease, he said, which permitted the lessor - Darin - to buy back the herd at a discount of 25 per cent in some circumstances. Mr Malseed said that were he advising Craig and Talia as his sole client rather than advising both brothers and their families, he would advise against such a provision. (T1321-2) Craig said:

"We had a discussion with Marcus about the farming agreement and Marcus made a few points. He said obviously he hasn't drawn up the agreement. He said ... that it's not a very well drawn up agreement."

1. According to Craig, the solicitor drew attention to a similar provision as to a buyback of stock at a discount which he had highlighted relative to the herd lease. (T1322, 11-15, 17-21) According to Craig, the solicitor said:

"[T]hat's something that the bank obviously requires. We signed it in his office." (Ibid, L22-23)

1. Craig did not believe there were any other signatures on the farm agreement when he signed it. (T1323, L11-12) Craig and his wife also signed "a contract of sale for the farm and the herd lease contract". (Ibid, L18-20) He said that his wife "dropped off" those documents at Rabobank. (Ibid, L22-30)
2. Mr Malseed gave evidence on behalf of the plaintiffs. He said that in 2011 his firm's offices did not include any conference rooms. Accordingly, consultations with clients took place in the relevant solicitor's own office. (T1138, L17-22) Mr Malseed identified a number of documents dated 5 December 2011 which he had signed as witness. (T1140, L1-7; CB 684-694) Even although he did not add his name as witness to the signature of the contract of sale for Farm 1, he could identify Mr Craig Blain's signature. (Ibid, L9-21)
3. Mr Malseed said that in addition to the executed documents themselves he had access to his firm's file on the matter from 2011. (T1141, L6-10) He had perused that file for the purposes of refreshing his memory. As to the document dated 5 December 2011 which showed Mr Malseed's signature as witness, he said "I would not put my signature as a witness unless I had seen the person sign the document first." (T1142, L25-27) In so far as the documents showed Darin's signature witnessed by Mr Malseed, he said "I can't recall if all three [viz Craig, Talia and Darin] were in the same room or they were in separate rooms. Unfortunately, the file doesn't clarify that and I can't say with certainty that they were all either in the same room or Craig and Talia in one room." (T1143, L11-14)
4. Having identified and verified the signatures on all the other documents, either by recognition of signature or by seeing his own signature as witness, Mr Malseed said as to the Farming Agreement that he did not recall its being signed at his office on 5 December 2017. (T1144, L21-23) He said he had no recollection and there was no record of the Farming Agreement in his file. (Ibid, L27-29)
5. Taken to the handwritten note of an attendance on Mr Darin Blain apparently on 9 November 2011 (CB 257) by Mr O'Haire, cross-examining for the defendants, Mr Malseed conceded a reference in the note to "farming agmt". (T1146, L15-22) He also identified a further reference to "Farming agreement" at CB 258, apparently as part of the notes of the same attendance. Mr Malseed accepted that the attendance notes indicated that he was told of the existence or proposed existence of the Farming Agreement. He did not accept that it took matters any further than that. (T1147, L20-29) He was prepared to accept that what Craig said about the Farming Agreement and its signature at his office might have happened, and he could not categorically say that it did not. (T1148, L4-9)
6. Mr O'Haire then took Mr Malseed to a provision in the herd lease for a repurchase by the lessor Darin of the herd in certain circumstances for a 25 per cent discount. He said he could not remember having discussed this clause with Craig and Talia. (T1149, L15-27) He said his state of mind as to this was that he did not "have a recollection of discussing that precise provision ..." (T1150, L3-4) He agreed that it would have been his duty and his usual practice to explain to his clients the substance of the documents he was advising on, and mention any "unusual terms". (Ibid, L25-31) Mr Malseed agreed that the cow lease was his draft. (T1151, L20-23)
7. Darin said that he had declined to sign the Farming Agreement and had so informed Mr Sinclair on the porch of Craig and Talia's residence in Warrnambool. (T772, L9-13; Ibid, L20-21) Darin said that Craig was present, but he could not say that Talia was. (Ibid, L22-25) Darin said he told Mr Sinclair that "we were supplying the vendor loan, 385k, so that would satisfy their [viz, Rabobank's] LVR [loan to valuation ratio] for the bank and they had all the mortgages in place, so that should satisfy all of their criteria for the loan." He agreed that this conversation took place some time in February 2012. (T772, L1-8) Craig denied that this happened. (T1126, L1-12) Perhaps surprisingly, neither counsel asked Mr Nick Sinclair, who gave evidence on subpoena on behalf of the plaintiffs, whether this exchange took place in February 2012, whether on Craig Blain's porch or elsewhere.
8. Mr O'Haire, in cross-examining Darin, drew attention to the fact that the Farming Agreement executed, or purporting to be executed, by him and his wife Sally appeared to be in circulation as at 12 December 2011 under cover of an email from a Ms Tracey Beddison of Rabobank. (CB 1939, 1965-66) It was described as being an enclosure or an attachment. (CB 1940) It was also a "box ticked" on a range of matters which were required for settlement. (CB 1943)
9. The complex of transactions (whether including the Farming Agreement or not) settled in the new year of 2012. The transfer of that property from Darin to Craig was registered on 9 March 2012. (T609) For operational purposes, the joint venture was regarded as having commenced on 1 November 2011. (T287, L10-11)
10. Darin obtained a second mortgage over Farm 1 to secure the vendor finance which he extended to his brother in the sum of $385,000. Rabobank's first mortgage over Farm 1 secured $685,000 plus interest and costs and expenses by way of first priority. (CB 1970) Presumably the mortgage was in standard bank form, securing all money owed on any account whatsoever by the mortgagor to the bank.
11. The equipment for the operation of the joint venture was provided exclusively by the partnership, being the plant and equipment which it had used to operate the dairying business immediately before the joint venture, viz until 31 October 2011. The basic and irreducible commitment required by the dairying business was the conduct of two milking sessions, morning and afternoon, of approximately two hours each. Morning milking commenced at 5.15 to 5.30am. (T316, L16-18) Morning milking took a little bit longer, perhaps somewhat over two hours, because it was necessary to wash the yard out. Afternoon milking might take a little less than two hours. (T316, L29 - T317, L4)
12. Darin said that by 2005 the two farms had been effectively merged and constituted "a very smooth operation to run". (T317, L17-27) From there on, he said, it was "just repairs and maintenance and bits and pieces here and there, and feeding ... feeding, that was critical." (T317, L31 - T318, L2) He agreed with me that the responsibilities of running a dairy farm were heavy and relentless. (T319, L10-16) In the period 2009 to 2011 - that is, before the commencement of the joint venture - Darin was unable to say how he "covered" annual leave taken by his brother. (T326, L23‑30)
13. Aside from the issue of plant and equipment, there was a further inequality between Craig's Company on the one hand, and the partnership (Darin and Sally) on the other. The partnership before Craig owned two out paddocks. Farms 1 and 2 were of approximately equal area, but the out paddocks brought additional land for production purposes to the joint venture solely from the partnership side. Darin said that he first broached the subject of the Company's paying rent for the out paddocks about the time of the purchase of Out Paddock 2. As previously noted, this sale was completed in August 2011, and this would indicate that the issue of rental payable by the Company to the partnership for the out paddocks was broached from the very outset of the joint venture; indeed, three months before. (T347, L17-28) Each of Farms 1 and 2 was approximately 178 acres. Out Paddock 1 was 98.5 acres, and Out Paddock 2 was 132 acres. The out paddocks therefore were not mere appurtenances. Each of them was larger than either of the "home farms". (T1708, L19-28)
14. Darin said there was a "fellow" renting an area in the rear of one of the out paddocks at a rate of $150 per acre. (T347, L31 - T348, L3) Darin said he mentioned this rental figure to Craig. It seems the rental out the back extended to some 52 acres and constituted a sitting tenant at the time of purchase of Out Paddock 2. Darin said that he did not regard the tenant's cow herd as being well maintained, and he "didn't want any disease ... so I roughly finished that agreement." (T348, L4-20) He recollected that this lease finished "in February 2012". (Ibid, L23-24) According to Darin, therefore, rental was payable by his brother's Company for the out paddocks from the first year of the joint venture. He continued:

"[B]ut I still said we would defer it because 2012 wasn't a great - sorry, 2012 was a good year so you wanted to get them on their feet. 2013 ended up being not a good year and then we hit 2014. It was a good year and Craig had said he had surplus cash or surplus money, what should he do with it. I said he had - there's options out there, there's FMDs, farm management deposits, there's superannuation and had a discussion about you could backpay the deferred rent." (T348, L27 - T349, L5)

1. Darin said Craig agreed. (T349, L6) Darin said there was no agreement as to rental for subsequent years. He claimed he said:

" 'Pay two years and you pay one into the accountant and the next one as a cheque', because I like cheques ... it was a good year so I wanted to keep that cheque to put in to a lesser year." (T349, L17-23)

1. This was apparently so that the income could be shown as derived for the purposes of his tax return in a later year with perhaps a lesser milk income. Darin said:

"I would only charge him the rent in a year where it was a good milk price year and we would just backpay it to fill in those years that weren't so good." (T350, L2-5)

1. Darin said he regarded the rent as charged as being "cheap rent". (T350, L7-12) For 2017 he said he wanted rent at what he regarded as still a conservative rate of $170 per acre. (Ibid, L13-14)
2. Ms Harris took Darin to the partnership's bank statement for the period 1 June 2014 to 30 June 2014, which showed a transfer made on 27 June described as "Heifer Rearing". Darin said:

"This is what I received from Blain Dairying for - it was classed as heifer rearing and yearly rearing expenses, based on the lease." (CB 1984; T350, L26 - T351, L7)

1. The amount in question was $18,480 (T351, L11), which represents a charge of $150 per acre for 112 acres. (Ibid, L13-14) 112 acres represents half of the available grazing area of the two out paddocks. (Ibid, L25-27)
2. Darin was taken next to CB 1985, Partnership Bank Statement for 1 January 2015 to 31 January 2015. On 6 January there is a recorded deposit of $18,400. Darin Blain had made annotations to inform his accountant that $18,400 represented the rental portion of a larger deposit of $23,283.78. (T353, L25 - T354, L10)
3. Darin was then taken to the partnership's Rabobank statement for the period 1 June 2016 to 30 June 2016 at CB 1986, which contained notations "Outpaddock 2016" and "Outpaddock 2015". Darin's view was that "It was supposed to be the rent for 2014 and 2015". (T357, L3-4) He said he returned the EFT payment on 30 June 2017, as testified by entries at CB 1987. (T357, L6-8) The statement characterised it as "Returned rent". (T358, L1) Darin said he made the refund "Because I wanted it in cheques" (T358, L16) so that he could leave those cheques on the shelf until the new financial year. (Ibid, L19-20)
4. He was then taken to yet a further bank statement page, at CB 1988, for the period 1 June 2017 to 30 June 2017. On 28 June there was a deposit of $37,696.78 with a handwritten notation of "Lease". (T358, L22-31) Darin explained:

"Craig gave us two cheques and that's the two cheques there put in the bank, banked on 28 June 2017." (T359, L7-10)

1. The rental years in question were the period 1 November of one year to 31 October the following year. (T359, L12-17)
2. Darin said he sought to increase the rent for the final three years, namely the years ending 31 October 2016, 2017 and 2018, to the rate of $170 per acre. (T360, L3-9) Darin said Craig "wasn't keen to pay it". (Ibid, L12-13) He said this conversation took place in late 2016. Darin said he explained that he had consulted a neighbour, Mr Ronnie Milne, who was leasing his property almost adjacent to the relevant land, and that $170 per acre was "certainly no larger than the market rent". (T361, L2-11) Craig, he said, gave him a rental cheque calculated at the old and lower rate of $150 per acre, which he said "was a simple cheque", and he [Darin] returned that cheque to his brother Craig at a mediation conducted on 3 July 2018 to resolve their differences. (T361, L18-24) He had been given the cheque "a few months before". (Ibid, L26) It seems Darin felt that banking the cheque might entail acceptance that the $150 per acre was the proper rental. (T362, L7-10) Darin said that approximately $60,000 is outstanding for the years 2016, 2017 and 2018. (Ibid, L19-23)
3. The final year, viz 2018, was charged for only 11 months rather than 12 months, according to Darin:

"Because we were ending the share farming agreement on that date [viz 30 September 2018]. So what it was was Craig had been there - the joint venture had ran for seven years and he had had the benefit of silage for seven years. So year 1 he had had the benefit without doing any fertilising or anything else and so he got that silage year 1, 2011. Seven years later he had had seven years worth of silage in a seven are-year [sic] agreement so you can't get eight years of silage in a seven-year agreement." (T363, L12-21)

1. Darin said he had previously given a "notice of intention" to terminate the joint venture as at 31 October 2018. (T363, L12-24) This was referred to in opening by Ms Harris, where she said that on "11 September 2018, the plaintiffs wrote to the defendants and said, 'We give formal notice that this joint venture will end on 31 October 2018'." (T103, L26-28) Earlier, on the same page of the transcript, she is recorded as saying:

"so there was a notice issued by the plaintiff on about 4 July 2018 which said an intention to terminate was effective on 31 October 2018." (Ibid, L18-21)

1. I asked Craig about this. (T1361) He denied it. (T1362, L8-12) Darin said the notice was handwritten, and presumably therefore no copy was retained. (T362, L30-31; T389) According to Darin, this handwritten notice was given the day after the unsuccessful mediation. (T389, L22-23) What unquestionably did happen was that under cover of an email dated 19 July 2018, Darin sent Craig's wife Talia a document styled "Tax Invoice", but undated, in the following terms:

We reserve the right to charge a fee on overdue invoices and recover all expenses incurred for Debt recovery.

The Land Lease agreement ceases on the 31/09/2018. You CANNOT harvest any hay or silage on land owned by DW & SL Blain.

1. As a further indication of the breakdown of relations between the brothers and therefore between Craig's Company and the partnership between Darin and his wife, Darin sent an email to Terry McMahon, by then the account manager for the Blain account, on the evening of 3 August 2018, as follows:

As Craig and Talia Blain have not supplied information that was requested by the close of business today, we have no option but to revert to legal action. As of Monday all mortgages associated with Blain Dairying will be removed. We require all signed documents between both parties.

1. The reference to "all mortgages" being "removed" is perplexing. Presumably Darin was stating, in effect, that he wanted the first mortgage which he held over Farm 1 paid out; perhaps also the stock lease.
2. As to the issue of rent for the out paddocks, Craig said that this was first broached with him "in around June of 2014". (T1326, L22) He said he rang his brother, raising for discussion a number of farm expenses which he said his brother was debiting to the Company as joint venture expenses "that were actually capital improvements or new things he was building around his house". (Ibid, L26-29) He said he told his brother "I don't really think it's fair that you are lumping these expenses into the joint venture expenses." (Ibid, L29-31) He said Darin replied "Okay, well, that's fine. Exclude those expenses ... You can start paying some lease on the out-paddocks then", to which Craig said he agreed. (T1327, L1-3) According to Craig, "Darin pretty much just said how it was going to be." (Ibid, L5-6) He required payment of $150 an acre, saying "and you can backdate it to November last year"; that is, 2013. (Ibid, L6-8) Craig said he did not think that was fair, and the discussion became heated, and "we wrote two cheques out". (Ibid, L13-16; CB 1221) The Company's bank statement showed a debit by way of an internet transfer to the partnership in the sum of $18,480 described as "Heifer Rearing". According to Craig, that was "what Darin wanted the payment to be described as". (T1328, L6) In answer to a question from me, Craig agreed that the internet transfer represented rent for 112 acres - that is, the effective area of the out paddock - at $150 an acre, "going back to November of 2013". (T1328, L25-30)
3. Craig was then taken to a page of his Company's bank statement covering the period 1-31 January 2015 (CB 1228) showing a debit of $18,480 representing the presentation of "cheque 31". Craig said he wrote that cheque "in late June 2014" and therefore its presentation seems to have been delayed. (T1330, L1-3) Craig denied that these payments represented rent backdated to the beginning of the joint venture in 2011. He said "That was not discussed." (Ibid, L13-14) The bank statement for Craig's Company for the period 1 June to 30 June 2016 shows two debits in the sum of $18,480 by way of internet payments to the partnership. Those transfers were reversed by the partnership on 30 June. (CB 1819) Darin told Craig that he wanted cheques. (T1331, L1-3) Craig said he drew the cheques in "late June 2016" and gave them to his brother. (Ibid, L5-6) He said he gave his brother a further cheque in June 2017. Craig denied that there were any discussions about increasing the rent during the term of the joint venture. (Ibid, L16-21) He then modified that evidence by agreeing that the issue of rental on the out paddocks was discussed "at the mediation meeting with Saul Moncrieff in July 2018". (Ibid, L26-31) He said Darin told him "we still owed him for the first two years of out paddock lease" (T1332), which Craig said he denied. (Ibid, L6-8)
4. The treatment of expenses, including staff expenses, as between the joint venture partners, was somewhat complex and varied over time. As of 31 October 2011, the Company was managing the two farms and providing the labour in return for a management fee. That regime persisted as from 1 November 2011. (T1332, L9-16) According to Craig, the nature of the management fee changed, such that it would no longer include a "wage" element for him as his Company's principal officer. The Company would now receive half of the net proceeds of the milk cheque. (Ibid, L21-29) The management fee reduced but would continue to be paid by the partnership to the Company. The wage outlays were the Company's responsibility. (T1333, L5-10)
5. According to Craig, when full-time employee Lachlan Jones commenced work for the Company on joint-venture business in the first half of May 2014, he had a discussion with his brother Darin as to the size of the management fee. He said that Darin proposed an annual figure of $60,000, but Craig concluded that that would be insufficient to meet the wages of Mr Jones as a full-time employee and the additional outlays required for casual labour to cover Mr Jones' weekends off and annual holidays. (T1336, L30 - T1337, L5) Craig said he proposed a figure of $70,000, to which his brother agreed. (T1337, L7-9) Craig said that it was no part of these discussions that there was to be a "reconciliation" of wages. (Ibid, L14-19) As Craig saw it, the $70,000 fee was to be at his Company's disposal without any obligation to account, aside from its obligation to employ labour, whether it be the full-time Mr Jones or casual fill-in to meet the joint venture's labour requirements. (Ibid, L20-23)
6. The Company entered into a salary-sacrifice arrangement with Mr Jones, entailing its providing him with a motorcycle which would be paid off by reductions in his wage over a stipulated period. (CB 1227) According to Craig, he told Mr Jones "We would be prepared to purchase the motorbike and then you could salary sacrifice the motorbike by your wages reducing slightly each week to pay for the motorbike over a 12-month period." (T1339, L18-21) Craig said that Mr Jones was "rapt". (Ibid, L23) The agreement was dated 23 February 2015, and the arrangement served to "pay off" the bike. (T1340, L7-8)
7. Following the departure of Mr Jones from the Company's employment in March 2017, according to Craig his brother agreed to the continuation of the management fee for a period without any obligation on the Company's part to account for or reconcile outlays of the management fee. (T1340, L9-22) This arrangement, he said, terminated with the last management fee payment in July 2017. (Ibid, L25-27) With Mr Jones departed, Craig said that the costs of casual labour (presumably in the absence of a full-time employee such as Mr Jones) cost more than the management fee. (T1340, L28 - T1341, L3) Craig said "We had a discussion with Darin and the management fee ceased. Then we started advising Darin of how much the wages were, or his share of the wages for each month and he just paid us the monthly wages amount, I guess." (T1341, L4-8) He said that he and his wife "were still providing our 50 per cent of the labour and then the casual staff were providing the partnership's 50 per cent of the labour." (Ibid, L21-23)
8. Craig accepted that any outlays to replace or "cover" the labour contribution from him and his wife were for the Company's account, not the partnership's. (T1342, L7-8) This arrangement apparently replicated a similar arrangement which existed before the commencement of Mr Jones' full-time work. (T1356(?), L15-18) Craig said that when he and his wife went on holiday in 2018 he "took the full amount that was paid to staff in that period, I divided it by 2, so I split it in half so that we were responsible for 50 per cent of that labour, and then charged the partnership the other 50 per cent." (T1342, L17-21)
9. Darin took a different view of these things. He complained that he was given no access to employment records: "I had requested information multiple times and particularly towards the end, and none was handed over." (T391, L5-9) He said he sought access to the "wages book", which was at all times denied. (The wages book was produced in the course of the trial.) Darin said the only information he had was to be found in the dairy diary which was kept in the dairy on what was Farm 2, which recorded the hours worked by casuals, together with other matters such as cattle treatments, calvings, and anything to do with stock on the farm. (T391, L22-28) This was a "friction point" between the brothers. Darin said:

"There was no reconciliation each month of how much ..., we paid a set amount each month and there was no reconciliation coming back. I wanted reconciliation on how much he had been paying, like, that was above what the wages should be and then it would be calculated what the actuals were and there would be some sort of a reconciliation take place at some point, but it never did. So I had suspicions then." (T392, L25 - T393, L2)

1. Ms Harris asked Darin when it was agreed that there were "set wages" (a phrase which I assume is to be regarded as synonymous with a fixed management fee). He said "We started on set wages at different times. It was a management fee and then we went to set wages in I think about 2014, without being exactly right." (T393, L5-8) I asked if that meant that from 2014 onwards, for a period of time, the Company regarded itself as entitled to a management fee without obligation to account for how it was spent. Darin said:

"That's right. Before that [viz, 2014] we would get the monthly wages so it would be a varying figure and post then we agreed on a set wage which was supposed to be 70k. I think it ended up about 78 we were paying. It was $7,220.52 per month and that was including GST, I think. So it was supposed to be some - so rather than have each month come in with varying amounts, Craig just wanted one amount to pay each month." (Ibid, L16-23)

1. In that time, Darin complained he received no reconciliation. (T393, L31 - T394, L1)
2. Apart from "friction" on these issues of reconciliation, I was not provided with any detailed description of how it was that the brothers came to be at "daggers drawn". Darin said the deterioration between the brothers was a "slow burn". There seem, however, to be at least some particular incidents, including an occasion on which, in Darin's opinion, Craig bullied Darin's son Jayden, who worked as a casual employee over the term of the joint venture. (T384, T388) Craig described an incident in which Darin was banging on the door of the tractor which Craig was driving, relative to the bullying or alleged bullying. (T1334, L25-29)
3. There were also occasions in the years before 2018 where there were heated discussions and Craig explored the possibility of exiting the joint venture. (Ibid, L2-14) As will appear, the rights and wrongs of many or most of these matters are not relevant to the matters now in dispute. The parties felt that their examination would be inflammatory. I will not be seeking to make any findings as to the rights and wrongs of such matters.
4. There was no complaint that the partnership was not entitled to terminate the joint venture as at the last instant of 31 October 2018. The dairy herd was divided, with the partnership and the Company taking equal numbers of milk-producing cows. There is no dispute as to the appropriateness of this division. There is, however, a dispute as to the division of the stock other than the milk-producing cows, to which I will turn in due course.
5. There was also a dispute as to the access to various paddocks. Aside from the "tax invoice" excluding the Company from harvesting silage on Out Paddock 2, Darin put a note in the dairy diary for 10 September 2018 including a diagram of a number of paddocks which were "shut up for silage". His note was as follows:

• All paddocks on this property are to be only used as night paddocks.

• Calves to be moved back to 1st split paddock at block.

• All other paddocks at block as marked above are shut up for silage." (CB 1772)

1. Craig admitted that he did not act in accordance with this direction. He said that he put stock in for "lightning" grazing on the "shut up" areas. (T1670, L16-21)
2. Following the end of the joint venture, Craig built a dairy on Farm 1 to enable it to operate separately as a dairy farm. He said the farm would have been worthless as a dairy farm without its own dairy. (T1658, L26-30)
3. The end of the joint venture entailed the payout of Darin's second mortgage over Farm 1.
4. On 30 October 2018, Mr Marcus Malseed of Jellie McDonald solicitors, which firm had acted for both the brothers in 2011, sent an email to the firm then acting for Rabobank, namely Dentons, stating that the payout figure on the second mortgage was $208,239.78, made up as follows:

Shortfall in interest (26 months at $250 per month)

1. Craig's Company's account was debited with this sum. It counterclaims in this proceeding for an alleged overpayment to Darin of $7,500. It challenges the alleged "shortfall in interest (26 months at $250 per month)" in the sum of $6,500 and contends that there was an overcharging.
2. The second mortgage as executed provided for payment of interest on the principal sum at the rate of 7 per cent. (CB 716) Examining bank statements, it appeared that the interest payment as at July 2014 had been adjusted. Darin said "Craig got some interest rate relief by half a per cent." (T409, L22-23) Darin said that he received a request for that relief and agreed to it. (Ibid, L24-26) Darin conceded on the basis that thereafter the interest rate under his second mortgage was reduced to 6.5 per cent. (T410, L10-11) Darin said that he had not noted at the time that the interest which his brother Craig paid was not the 6.5 per cent which he says he agreed upon, but rather 5 per cent. He said he never agreed to such a reduction (T410, L23-24), hence the inclusion in the payout figure as advised to the bank's solicitors of an amount of interest arrears.
3. Mr McMahon, the account manager for the Blain family as at the "washup" of the joint venture in 2018, said that the bank had in fact refunded an amount of $8,000, being an alleged overpayment to Darin, to Craig. (T1180) He said, "My memory was that the bank refunded up to what might have been $7,000 or $8,000." (T1180, L9-10)

1. Solicitors acting for the partnership filed the writ which commenced this proceeding on 28 January 2022. By the time the matter came on for trial before me, the plaintiffs' claim had reached its fourth iteration in the second further amended statement of claim dated 1 October 2024. I will refer to this as "the Statement of Claim".

1. In their Statement of Claim, the plaintiffs describe the parties and the constitution of the joint venture agreement, alleging a series of express or implied terms generally along the lines of the narrative above. In particular it was alleged that:

(i) Each party, being the plaintiff partnership and Craig's Company, the first defendant, would pay to upkeep the pastures and farm infrastructure on the Farms;

(ii) The plaintiffs would charge the defendant Company, and the Company would pay annual rent for the Company's use of Out Paddock 1 and Out Paddock 2;

(iii) The defendant Company would pay 50 per cent of the cost of maintenance and repair of the Partnership Plant and Machinery and a contribution to the cost of the replacement costs of the Partnership Plant and Machinery in the event repairs were not economically viable;

(iv) At the cessation of the joint venture the Company agreed that Farm 2 and Out Paddocks 1 and 2 would be no worse in condition than at the commencement of the joint venture.

1. The defendant Company agreed with the plaintiff partnership that it would employ dairy workers to supplement the labour required for the joint venture, and pay each such employee their employee entitlements, with the Company, via Craig Blain and his wife, contributing 50 per cent of the labour seven days a week, and, if Craig and Talia had any time off, the Company was responsible for the cost of any employee used to supply the Company's 50 per cent labour unit.
2. On and from May 2014 the Company would charge the partnership "a set amount per month plus GST for wages for employees", and credit the partnership with any difference between the amount of the Set Wages Charge and the actual cost of wages for each month.
3. According to the Statement of Claim, these terms were breached by the defendant Company, in that it failed in its obligation of upkeep for Out Paddock 1 and Out Paddock 2, thereby inflicting loss and damage on the partnership, and failed to upkeep the infrastructure on Farms 1 and 2, also inflicting loss and damage on the plaintiff partnership.
4. Further, it was alleged that there had been a failure to pay the agreed rental for the out paddocks, thereby inflicting loss and damage on the plaintiff partnership.
5. According to the Statement of Claim, the defendant Company overcharged the partnership for employee wages in a variety of ways, thereby inflicting loss and damage on the plaintiff partnership. Further, it was said that the Company failed to pay employee entitlements to casual workers, and underpaid casual employees' superannuation benefits, thereby inflicting loss and damage. It was said that the Company's failure to keep proper records as required under the joint venture agreement inflicted loss and damage on the plaintiff partnership with respect to the employment of Lachlan Jones in the period 2016 to 2017, thereby inflicting loss and damage on the plaintiff partnership, and further inflicted loss and damage by failing to produce employment records on request.
6. According to the Statement of Claim, the Company retained possession and use of joint venture plant and machinery on Farm 1 to the exclusion of the plaintiff partnership, the relevant items being listed in Annexure H. Further, it was said that there were partnership plant and equipment items which should have been returned and were not (these were listed in Annexure I), thereby inflicting loss and damage.
7. In particular, it was alleged that coffin troughs were wrongfully retained by the Company, and a claim for damages in detinue was made with respect to the coffin troughs. The loss and damage said to have been suffered by the plaintiff partnership was within the range of $47,736 at the low end up to a maximum loss of $119,340. The particulars subjoined to paragraph 53C of the Statement of Claim foreshadowed the provision of expert evidence at trial.
8. Next, it was said, in breach of the terms of the joint venture the Company had failed to pay the partnership 50 per cent of the operating expenses of the joint venture as detailed in Annexure J, thereby inflicting loss and damage.
9. Further, it was said that the condition of Farm 2 and the out paddocks was worse than at the commencement of the joint venture by reason of overgrazing and failure to fertilise. Accordingly, the plaintiff partnership had suffered further loss and damage.
10. Finally, it was said that the various allegations against the Company, aside from being breaches of contract or entailing the tort of detinue, constituted breaches of fiduciary duty by the Company as against the plaintiff partnership, and that the Company had "failed to act honestly, in good faith and with fidelity in the best interests of the [plaintiff] partnership" and had put itself in a position of conflict where its interests conflicted with those of the plaintiff partnership, thereby gaining an advantage for itself at the expense of the partnership. Loss and damage was claimed in that respect accordingly.
11. Finally, there was a series of claims in "bailment" relative to a Honda motorbike and a Holden Monaro. Damages in the sum of $14,110, being the replacement costs of the motorbike, were sought. As to the Holden Monaro, it was said that it had not been properly looked after, and its condition had therefore deteriorated. There was no nominated sum of money representing the amount of damages sought relative to the Monaro.
12. As regards the second defendant, claims were made against him under the Water Act 1989 but were abandoned by amendment, and the claims in bailment were made against him rather than against the Company.
13. Accordingly, as against the defendant Company there was a claim for (a) damages, (b) accounting of joint venture expenses, (c) an order for the return of each concrete [coffin] trough in the care, control and possession of [the defendant Company], (d) interest pursuant to statute, (e) costs, and (f) further and other relief. As regards the second defendant, Mr Craig Blain, there were damages sought relative to the Honda motorbike and the Monaro, together with consequential relief in the form of costs, interest, and further or other relief.

1. The Defence and Counterclaim seems to have undergone an even larger series of iterations and reiteration; the most recent one, dated 31 October 2024, being described as the "Trial Defence and Counterclaim", having succeeded the third amended defence and the second amended counterclaim.
2. Craig Blain and his Company admitted the existence of what was described as a Dairy Joint Venture Agreement being partly in writing, partly oral, and partly "implied by conduct". The written portion of this agreement was said to be constituted by the document styled "Farming Agreement". The oral portion was said to be constituted by discussions between the brothers, and implication by conduct was said to derive from some fifteen circumstances numbered A to O. They said there was an implied term of the agreement that each of the defendant Company and the plaintiff partnership "would be entitled to an accounting in respect of the joint venture". This was described as the Accounting Term.
3. Next it was said that either party might terminate the joint venture upon "reasonable notice to the other party". Reasonable notice in the circumstances of 2018, it was said, was constituted by 4.5 months. This represented the time required for Craig, to Darin's knowledge, to construct a new dairy using his own labour.
4. Next it was said that it was a term of the joint venture "that any plant and machinery jointly purchased by the Partnership and the Company" would be paid for by each equally and used for the purposes of the joint venture, be maintained and repaired and the cost shared equally, and upon termination be retained by one or other of the Partnership or the Company, or sold, and the proceeds shared equally.
5. Further, it was alleged that it was a term of the joint venture agreement that the Company could use the dairy on Farm 2 until the Company was able to obtain alternative milking arrangements.
6. Further, it was said the law implied a term that neither party would "do anything to hinder or prevent the other from performing the Dairy Joint Venture Agreement".
7. According to the defendants, between 2012 and 2017 the plaintiff partnership and the defendant Company agreed to a series of variations to the joint venture to the effect that the venturers would have use of 52 acres of Out Paddock 2 on the basis of no rent being payable by the defendant Company, and the venturers each paying 50 per cent of the expenses to maintain that area while it was being used for the joint venture. Capital expenses on Out Paddock 2 were to be "the responsibility of the owner" of the out paddock. In around June 2014, the parties agreed that the Company would pay $18,480 inclusive of GST per annum from 1 November 2013 "as consideration for the partnership granting the use of Out Paddock 1 and Out Paddock 2 for the joint venture".
8. As to hired workers, in July 2012 it was alleged that the parties agreed from 1 July 2012 the Management Fee would increase to $1,068.72. In January 2014 the parties agreed that from 3 January 2014 the payment of the Management Fee would cease and the partnership would make monthly payments to the Company equal to the actual cost of employing the hired workers. From 1 May 2014 the arrangement would revert to the plaintiff partnership paying a management fee at the rate of $70,000 per annum plus Goods and Services Tax. From February 2017 the parties agreed that the payment of the Management Fee would cease, and the plaintiff partnership would make monthly payments to the Company equal to the actual cost to the Company of employing the hired workers.
9. There then followed a series of admissions and denials of allegations in the Statement of Claim.
10. As to the issue of rent for the out paddocks, they said that the Company made payment or tendered payment of the agreed rent.
11. As to the provision and use of equipment, they relied on the provision in that respect to be found in the document styled Farming Agreement.
12. As to the allegations relative to the employment of staff, the defendants said that the Company's employment of staff was in accordance with the Dairy Joint Venture Agreement.
13. As to the splitting of the herd, the defendants said that the plaintiff partnership and the Company "split the milking cows between them on a 50/50 basis by each taking possession of 50% of the milking cows"; and, as to the balance of the herd, contended that the partnership had taken possession of the miscellany of beasts described as "excess cattle" for the purposes of sale on behalf of the partnership and the Company.
14. As to the allegation that the Company had failed to meet an obligation of "upkeep" of the out paddock, the defendants denied that the partnership had contributed the labour alleged, but in any event denied that the Company was under the alleged obligation. In any event, it was said that the works were capital works which, it was said, were specifically excluded as liabilities of the Company by the Farming Agreement.
15. They dealt with allegations relative to gravel, which have not been pressed at trial.
16. As to allegations of failure of upkeep of the two farms themselves, the defendants denied the existence of any term that the farms were to be "no worse off" at the end of the joint venture than at the beginning, and relied on provisions of the Farming Agreement excluding Cost.
17. As to the claim for rent for the use of the out paddocks, they said they had paid the rent that was due, and denied liability on the tax invoice delivered in 2018.
18. As to the alleged failure to pay 50 per cent of maintenance and repair costs for partnership plant and machinery, they said that the Company had paid the amount for which it was liable, and denied any further liability. The defendants denied the Company was obliged to contribute a "unit of labour" to the repair and maintenance of plant and equipment, referring to the Farming Agreement.
19. As to alleged overcharging for employee wages, the defendant said the defendant Company was not obliged to "account to the Partnership for the difference between" the actual wage cost and the amount paid to the Company in that regard. In any event, it was said that such a claim was barred by s5(1) of the Limitation of Actions Act. They admitted that the Company was responsible for keeping employee records and ensuring that each employee received his or her employee entitlements, but otherwise denied the allegations in this respect. They said the Company was under no obligation to account to the plaintiff partnership "in respect of any alleged underpayment", and that in any event the plaintiffs did not have standing to bring any claim for alleged non-compliance by the Company with its obligations to its employees.
20. As to the coffin troughs, the Company admitted it had received demands for delivery of those troughs from or on behalf of the plaintiff partnership, and said it proposed to deliver five of those troughs "to an appropriate location, with the troughs remaining intact", and indicated that such troughs were available for collection, but expressed concern that an attempt to remove them might result in their being damaged, and suggested a truck crane should be used. It was said no arrangement for collection was made. Any losses alleged by the plaintiff partnership to have been suffered by reason of deprivation of the troughs was said to be attributed either to provision of inappropriate food to the stock or to a failure to mitigate the partnership's loss.
21. As to alleged overgrazing, the plaintiffs denied that it had occurred, but, in any event, if "no worse off" obligation existed it attached to both venturers, and the plaintiff partnership was liable for the cost of 50 per cent of rectification.
22. As to alleged failure to fertilise, they said that the "use of effluent and muck as fertiliser was the subject of oral agreement between Darin and Craig from time to time" and was determined "primarily by the needs of respective paddocks".
23. The defendants denied the allegation of breach of fiduciary obligations, alleging that the pleading was embarrassing and ought to be struck out.
24. As to the bailment claims against the second defendant Mr Craig Blain, the defendants generally denied these allegations.
25. By way of counterclaim, the plaintiffs alleged that:

"On or about 31 September 2018 [sic], being 1 month prior to the termination of the joint venture on 31 October 2018, the Partnership denied the Company access to Out Paddock 1 and Out Paddock 2 for the purposes of cutting fodder that Company had grown on behalf of the joint venture". (CB 116)

1. What had been retained by the partnership, it was said, equated to approximately 280 tonnes of dry matter of a good quality in the form of 700 bales of fodder. It said in the circumstances that the Company was entitled to use of the out paddock, and the partnership had failed to account for the 700 bales of fodder. It said the Company thereby lost $44,732.18, being the cost of replacement fodder.
2. Alternatively, the defendants by counterclaim alleged the existence of what was described as the Initial Out Paddock Lease deriving principally from the clause in the Farming Agreement under the heading "Use of Out Paddock". Whilst the Company was liable for 50 per cent of the maintenance expenses, capital expenditures were for the account of the owner of the out paddocks. The leasing arrangement was, it was said, varied as from June 2014, whereby the Company would pay rent of $18,840 including Goods and Services Tax, would pay 50 per cent of the maintenance expenses of the two out paddocks, with the owner meeting capital outlays. It was said that the Company:

"was entitled to enter Out Paddock 1 and Out Paddock 2 for a reasonable time after termination of the Out Paddocks Lease for the purpose of harvesting and removing the crops to which the Company was entitled". (CB 122)

1. The restriction said to have been imposed "on or about 31 September 2018 [sic]" thereby inflicted loss and damage.
2. As to the second mortgage, according to Craig, Darin had agreed to payment of interest at 5 per cent per annum in lieu of the originally stipulated 7 per cent. In so far as arrears of interest were included as part of the payout figure on the second mortgage, and were paid by Rabobank on behalf of Craig. This was done by "mistake of fact", and "Craig has suffered loss in the sum of $7,583.33".
3. According to the defendants, the plaintiff partnership had failed to pay Invoices 49, 50 and 51 rendered to it respectively on 31 August 2018, 30 September 2018, and 31 October 2018, for 50 per cent of the joint venture costs, totalling $53,492.40.
4. The defendants alleged that the plaintiff partnership had "converted" what were described as the excess cattle: that is, all those in excess of the milking cows which had been equally divided between the Company and the partnership. They claimed an entitlement to 50 per cent of the "excess" cattle, and that the partnership had agreed to sell them and account to the Company for 50 per cent; which failure to account led, it was said, to a loss for the Company of $33,250.
5. In so far as the plaintiff partnership retained the proceeds of delivery of milk delivered on the morning of 1 November 2018, the defendants said that since this consisted partly of milk expressed the previous evening, 31 October, the partnership was liable to pay the Company 50 per cent of that amount.
6. The Company and Craig Blain alleged wrongful detention by the Company of a series of items left on Farm 2 following the determination of the joint venture, which items had not been returned despite demands from the defendants' solicitors. The counterclaim sought a variety of relief, including a liquidated sum of $62,851.15, damages, equitable compensation or equitable damages, delivery-up of retained items, and consequential relief.

1. By their reply, the plaintiff partnership denies that it had bound itself to the Farming Agreement, saying that it had "expressly rejected the terms and conditions" of the document titled "Farming Agreement" in or about February 2012, when Rabobank, by its representative, Nicholas Sinclair, produced a written document by that title to Darin on behalf of the partnership in the presence of Craig and Talia Blain. This meeting was said to have taken place "on the back porch of Craig and Talia's house". In any event, it was said that "at no time before 3 July 2018 [that is, at the mediation convened by Mr Moncrieff referred to earlier] was the Partnership aware that the terms and conditions of the Rabobank proposed farming agreement were relied on by Craig and/or the Company". They relied upon an admission in a letter from the defendants' solicitors to the effect that the Farming Agreement was unsigned. (Letter dated 25 September 2018.) They complained of a failure to produce a signed copy of the agreement by way of discovery or otherwise. Accordingly, it was said, there was no proper basis for pleading this agreement as required by s18(d) of the Civil Procedure Act 2010, and reliance upon it was, it was said, contrary to the overarching obligation under that statute.
2. The plaintiffs referred in detail to Rabobank's letter of offer, saying "no executed farming agreement exists or ever existed".
3. There follows a series of close-grained admissions, but predominantly denials and counter-allegations as to terms between the parties. As to the allegation of conversion of the "excess cattle", the plaintiff partnership agreed that it took possession of the bulls, which it said were not part of the herd and were at all times its sole property, and as to Friesian heifers, said that they were abandoned by the Company because of their poor health.

1. The defence to counterclaim generally denied the matters alleged by the defendants in their counterclaim.

1. On 20 December 2023, her Honour Judge Aileen Ryan made consent orders in chambers as to the trial of this matter, including inter alia the following order:

"1. Pursuant to rule 47.04 of the Rules, all remaining paragraphs of the FASOC and the 2FAD shall proceed at the trial listed for 6 February 2024 other than:

1. paragraphs 19 and Annexure C, 21 and Annexure D, 26 and Annexure E, paragraph 50 and Annexure H, paragraph 53 and Annexure I, 53B and 53C, 54 and 55 and Annexure J, 70 and 95 of the FASOC; and
2. paragraphs 108, 108J and 137 of the 2FAD." (CB 197)

1. The following year, on 17 October 2024, Judicial Registrar Bennett modified her Honour's orders as follows:

"4. Paragraph 1 of the orders of her Honour Judge Ryan dated 20 December 2023 are varied such that pursuant to Rule 47.04 of the Rules, all remaining paragraphs of the second further amended statement of claim and the second amended counterclaim shall proceed at the trial listed for 6 November 2024 other than:

1. paragraph 19 and Annexure C, paragraph 21 and Annexure D, paragraph 26 and Annexure E, paragraph 50 and Annexure H, paragraph 53 and Annexure I, paragraphs 53B and 53C, 54 and 55 and Annexure J, and paragraphs 70 and 95 of the second further amended statement of claim; and
2. paragraph 137 of the second amended counterclaim." (CB 201)

1. This rather arcane "split" was, as I understand it, proposed by the parties rather than by either the learned Judge or Judicial Registrar. Whilst the delineation may have been clear to counsel, a number of attempted clarifications left me confused rather than enlightened. (See T2172, L25 - T2174, L21).

1. The genuineness or otherwise of the alleged Farming Agreement (see paragraph [21] above) is of crucial importance. After initial denials, Rabobank was able to locate what purported to be an executed copy of the Farming Agreement. The plaintiffs allege that what purported to be signatures by Mr Darin Blain and his wife Sally are forgeries. I have already summarised Darin's evidence in that respect. His wife Sally gave evidence that in 2011 she did not attend any of the meetings with Mr Sinclair of Rabobank; likewise in 2012. (T1084, L18-21) She said that she first saw the Farming Agreement, or alleged Agreement, in September 2018. (Ibid, L22-30) She denied being at the offices of Jellie McDonald on 5 December 2011, the date that the agreement or alleged agreement bore. (T1085, L3-6) It was in February 2024, she said, that she first became aware that she was alleged to have signed this agreement. (Ibid, L14-16) She said she was not present at the mediation in July 2018. (Ibid, L29) She denied authorising anyone to apply her signature to this agreement. (T1086, L14-15)
2. The plaintiffs relied on evidence from a forensic document examiner, Mr John Ganas. He provided two reports. The first, at CB 589, was dated 14 October this year. Having set out his qualifications and experience, he remarked at paragraph 26 of his report:

"The documents examined were reproductions. The reproduction quality of these documents varied however the overall reproduction quality was sufficient to undertake an examination and make observations regarding features such as construction, proportions, baseline alignment, spacing, slant and internal structures of the signatures. It is often difficult when dealing with reproductions to determine with certainty some finer features of writings such as line quality, pen stroke direction, pressure and pen lifts however the overall reproduction quality of the signatures examined allowed reasonable inferences regarding these features to be made. The examination was also limited by the relative simplistic nature of the Darin Blain signature model and the small number of both David [sic] Blain and Sally Blain sample signatures submitted for comparison which restricted the assessment of the variation in both writers natural signing behaviour." (CB 593)

"The questioned Darin Blain signature appearing on the Farming Agreement Q1, shares overall pictorial similarities with the sample signatures however displays a number of differences in construction feature characteristics." (CB 597)

1. He concluded as follows, at paragraph 42 of his report:

"1 The evidence provides moderate support for the hypothesis (H₂), that is, that the questioned Darin Blain signature appearing on the Farming Agreement Q1 was not written by the writer of the sample Darin Blain signatures and is the product of a simulation / forgery process." (CB 601)

1. He expressed a similar view relative to what purported to be the signature of Sally Blain.
2. Mr Ganas provided a second report, dated 14 November 2024. At the time of writing this supplementary report, Mr Ganas had been provided with what purported to be the original signed agreement from the records of Rabobank and certain additional examples of Mr Blain's signature. Mr Ganas had seven sample signatures of Mr Blain, and when he received the original of what purported to be the Farming Agreement he received two additional samples. (T1192, L21-25) Under cross-examination Mr Ganas accepted that the dissimilarities which he had noted were possibly the result of natural variation. (T1193, L18-19)
3. Elaborating on his report, Mr Ganas said:

"In terms of the opinion strength, most examiners in government labs around Australia have two levels of opinion either side of inconclusive, the strongest opinion being that it is my opinion that it is written by or it is not written by [the author of the sample signatures], and then one step down there is moderate support that it is written by or it is not written by ... [T]hat opinion can be given for a variety of reasons: whether the signature is simplistic, whether there are few sample signatures, whether it's a poor reproduction photocopy; there's a number of reasons why the strength of opinion may be reduced.

In terms of is it a low level of opinion, again, as I said, I can't assign a number. What we consider - when you see differences you have got to think of what are the reasons that there are differences and one of the reasons are: one, it's by a different writer; two, it's a disguised signature by ... the actual writer but it's disguised; three, it's a genuine signature but ... its variation is not represented in the sample signatures submitted. So you have to weigh up what is the probability of each one of these." (T1194, L1-24)

1. In the present case there is no suggestion of disguised signature. It seems Mr Ganas thought the more probable interpretation of the variations of signature which he observed was that Darin and his wife were not the makers of what purported to be their signatures, rather than that the variations were not to be found in the admittedly limited number of samples which he studied. (T1195, L24-29)
2. Mr Ganas conceded that the identification of signatures is attended by inherent uncertainty and is to a degree subjective. (T1196-7) Mr Ganas agreed that the provision of more samples of genuine signatures from Darin and his wife might have reduced the likelihood of the Farming Agreement signatures being forgeries. (T1198, L10-12) Mr Ganas said that his opinion was made up rather like a bundle of sticks: failure or discredit of one of the sticks would not destroy its integrity, in contrast to the situation with chain reasoning, where the chain is only as strong as its weakest link. (Ibid, L23-30) The strength of Mr Ganas's opinion therefore lies somewhere between a downright finding of forgery on the one hand, and an inconclusive opinion - that is, an inability to say one way or another - on the other. He could not say that this represented a mid-point between the two opinions; merely that it lay somewhere between the two levels of confidence. (T1200, L2-7)
3. In his initial report (CB 596), he noted as a feature of what were described as the undisputed or "sample" signatures for Darin that the disputed signature in its initial letter "D" descends below the baseline, which I take to mean the ruled line on which the signature is placed. (CB 598) The two additional sample signatures considered for the purposes of the second report, which are to be presumed genuine, identified as "S8" and "S9", in the one instance (S8) descends substantially below the line on which the signature is placed. In the second instance (S9) it does not descend below the line at all.
4. Is the Farming Agreement a genuine contractual obligation subscribed to by Darin and his wife? At the outset I must reject Darin's account of an interview on the porch of his brother's house in Warrnambool in February 2012 in which he advised Rabobank account manager Mr Nick Sinclair that he (and presumably his wife) declined to execute the Farming Agreement. Craig, who was said to have been present, denied this event occurred. Mr Sinclair, who, on Darin's account, was the immediate interlocutor in this exchange, though called on subpoena as part of the plaintiffs' case, was not asked about this alleged exchange at all by the plaintiffs' counsel.
5. The alleged signed original Farming Agreement was, as the foregoing narrative indicates, already "in circulation" between the bank and its solicitors two months earlier on 12 December: see paragraph [32] above. Granted that it is far from inconceivable that a person who particularly wanted a deal to go through might, in the face of a refusal by a necessary party to sign a document, forge the signature, such a scenario here does not seem credible. First, as all seem to agree, the brothers were close in 2011/2012 ("best mates"). Had an apparent signature on behalf of Darin and his wife come into existence AFTER they had announced a refusal to sign, this would be consistent with someone desperate to push the deal through resorting to a criminal expedient.
6. The narrative indicates that the Farming Agreement was drafted by Mr Sinclair to satisfy a bank requirement and following consultation with the brothers. As at December 2012 there was no indication in the written record or in the evidence of Darin and his wife that the one or the other of them had announced a refusal to sign the agreement. Why then would such a desperate expedient as forgery be resorted to in December? Again, as the plaintiffs' reply indicates, prior to trial the defendants seemed unaware or unable to say if the agreement had been signed at all. Had they forged Darin and Sally's signatures and intended to rely on the forgery, surely at all material times they would brazenly have asserted that Darin and Sally had "signed up" to the agreement. The details of signing up a series of documents are easily forgotten. The fact of having forged a material document would not have been.
7. When I raised with Ms Harris her failure to ask Mr Sinclair about the alleged interview at Craig's house in February 2012, she replied "I think because he said ... after 5 December [2011] he had nothing to do with the farm." (T1946, L12-13) Had she wished to vindicate Darin's account of the conversation on Craig's porch in February 2012, she could have sought leave under s38 of the Evidence Act 2008 and cross-examined Mr Sinclair on this point. The fact that his answer was unfavourable to the plaintiffs' case would appear to have provided a sufficient basis. It would seem therefore that Ms Harris accepted that the discussion described by Darin as having taken place on Craig's porch in February 2012 did not occur as described by Darin.
8. Independently of this implicit concession by plaintiffs' counsel, I conclude that the events described by Darin did not occur. That is, he did not inform Mr Sinclair or any other representative of Rabobank that he and his wife refused to execute the Farming Agreement. What purports to be the signed original has at all material times, from December 2011 until its production to the court in response to a subpoena, been in the custody of Rabobank. Therefore, it cannot have been a desperate expedient resorted to by the defendants when sued in the present proceeding.
9. In Closing Submissions, Ms Harris made an elaborate analysis of the evidence put on by the defendants in support of the execution of the Farming Agreement by the parties. Insofar as she contended that the narrative on behalf of the defendants could not be accepted as reliable, I accept her critique for the reasons already given; however, I do not regard it as determinative on the issue as to whether the parties in fact executed the Farming Agreement.
10. The Farming Agreement seems to have become an issue for the first time during the mediation session before Mr Moncrieff in July 2018: that is, almost seven years after the events surrounding its execution or alleged execution. The restructuring of the Blain family enterprises to establish the joint venture was not an exceptionally complex process, but, as all such processes do, it required a lot of "paper shuffling" and signature of documents. This means, for instance, that there is no reason to reject the evidence of Darin's wife that she remembers signing no Farming Agreement.
11. Similarly, Mr Malseed, one would think, having completed numerous business and conveyancing transactions in the years between 2011 and 2024 - over a decade - might be expected to be relying upon no memory beyond what might be refreshed by perusing his file. On 5 December he did not provide written advice, so no written document would record what he did or did not speak to Craig and Talia about. His diary notes do refer to a "Farming Agreement", albeit in the context of a different attendance. The document is scarcely a masterpiece of legal draftsmanship. Mr Malseed could be excused for having given it scant attention in December 2011 and having left no written record of his having seen or advised upon it.
12. Ms Talia Blain was cross-examined by Ms Harris at great length by reference to the written record of events in 2011 and 2012 pertaining to the preparation and execution or non-execution of the Farming Agreement. Whilst Ms Blain denied that her evidence as to these matters - in particular, that the Farming Agreement was signed in Mr Malseed's office - was a reconstruction, I conclude that it was. In the wake of the termination of the joint venture, when the parties via their solicitors were making demands and counter-demands, the defendants' solicitors, Maddens, spoke of the Farming Agreement on the basis either that it had never been executed, albeit that the joint venture operated according to its terms, or that they were uncertain as to whether it had been executed or not. (CB 1895) This implies that Craig and his wife Talia were uncertain on this point. How is it that in the years since 2018 their recollection of events in 2011 has improved so as to be able to give a detailed account of the execution of the Farming Agreement in evidence to the court in 2025? No doubt the memory may become clearer when it is revived by reference to a clear and unambiguous documentary prompt. Here, the only "prompt" would appear to be that some documents were executed by Craig and Talia at Mr Malseed's office on 5 December 2011. Talia's email quoted at [20] above implied that the Farming Agreement "between Fang [that is, Darin] and [Craig and Talia]" had already been signed before their attendance upon Mr Malseed. That is the conclusion that I reach.
13. What is important is that I have concluded that the agreement was executed on behalf of both the plaintiffs and the defendants; and the day upon which any one or more of the signatories actually signed, or the location of their signing, does not appear to be material. The form of agreement drawn by Mr Sinclair makes no provision for the signatures to be witnessed.
14. A finding that the signatures of Darin and his wife on the Farming Agreement are genuine would entail rejection of the expert opinion of Mr Ganas; something which one would consider only with caution and reluctance. Mr Ganas was an impressive witness. Nevertheless, his negative opinion as to the genuineness of the signatures was far from downright. At least one of the "variations" from the genuine original which formed the basis of his initial opinion was invalidated by the provision of two further sample signatures for the purposes of his supplementary report. This goes to underline the significance and importance of the limitations which he expressed as to the confidence with which he could express his conclusions.
15. In Closing Submissions, Ms Harris noted that the Rabobank letter of offer dated 29 November 2011, aside from stipulating for the Farming Agreement, also required as a condition of settlement:

"written confirmation to Rabobank, in a form acceptable to Rabobank in its sole discretion, that all amounts payable to Darin William Blain and Sally Louise Blain in relation to the vendor loan and cow lease purchase loan will be subordinated in all respects to any amounts payable to Rabobank under the Facility(ies)." (CB 662)

1. She noted that the documents passing between the bank and its solicitors, Hall & Wilcox, at the time of drawdown of the joint venture facility, and the documents produced on affidavit, disclosed that there was a priority agreement relative to the real estate mortgage over Farm 1, but there was no subordination agreement. As I understood the significance she attached to this, it was that if the bank were prepared to proceed to settlement without the subordination agreement it might also proceed to settlement without the Farm Agreement (T2217 ꟷ T2218). So much may be accepted, but this does not outweigh the other considerations to which I have already referred. In particular, the bank did hold a document which was apparently executed by the parties and represented the Farming Agreement referred to in its approval terms. In any event, it may be that the bank ultimately considered the provision of the Farming Agreement under the heading "Finance" at the end of the paragraph: "At Rabobank's request the repayments of the vendor loan will be subordinated", as constituting the subordination agreement, or at any rate achieving the necessary result.
2. The dating of the agreement, 5 December 2011, is clearly not in the handwriting of Mr Malseed. It is common for legal documents, particularly those made inter partes, to be left initially undated at the time of signature. No agreement comes into existence in the ordinary course of events until the last party signs. The unidentified handwritten date 5 December 2011, in my view, was likely applied by some person processing the documents such as a person in the bank's settlement department. Ms Harris drew attention to the fact that it was common ground that the joint venture commenced on 1 November 2011, though she observed "there is no particular science to 1 November" (T2108, L6-10). Plainly, the date 5 December 2011 does not correspond with this commencement date.
3. If it appeared that the Farming Agreement constituted an amendment or a variation of pre-existing arrangements there might be some question about consideration. First, the pleadings do not raise any issue as to consideration. Secondly, there is nothing in the evidence to suggest that the Farming Agreement constituted a variation as distinct from recording the terms of the agreement between the parties. It could be seen as "tracking" the "deal" between the brothers as described in a finance proposal to Rabobank's credit authority (CB 637-8). Ms Harris said she relied on this document "not as a document of the agreement but as a memorandum of the matters that were discussed at that time" (T2111, L16-18) She agreed with me that it "captures what the deal was" with one caveat (T2112, L4-7). The passage in the proposal which she said was not as per the agreement between the brothers was as follows: "There will be no adjustment for the plant and equipment ownership and the out-paddock block" (Ibid, L15-17). These are matters to which it will be necessary to return in due course.
4. Ms Harris attacked the enforceability of the Farming Agreement not only on the basis that the signatures thereon purporting to be by the plaintiff partners Mr Darin and Mrs Sally Blain (word/s missing?), but also because:

"The [defendant] Company, which purports to hold the [plaintiff] Partnership to the terms of the executed Proposed Farming Agreement is not a signatory to that Agreement, and as such, has no standing." (Closing Submissions, paragraph 134(b))

1. This contention is based upon the introductory sentence of the Farming Agreement: see [20] above, which states:

"This agreement is between Darin & Sally Blain and Craig & Talia Blain which incorporates Blain Dairying P/L ATF The Blain Trading Trust."

1. Craig and Talia subscribed to the agreement. The authenticity of their signatures is not in dispute. As I understand Ms Harris's contention, it is that if the Farming Agreement is otherwise a valid agreement, it is an agreement between the plaintiff partners and Craig and Talia, not the defendant Company. In my view, the language chosen in an agreement which the evidence shows was not professionally drawn, whilst clumsy, clearly indicates that it is the Company which is making the agreement. As far as I can ascertain, no ASIC extract has been put into evidence indicating who the corporate officers of the defendant Company were in the period November-December 2011. The entire trend of the evidence, however, was to the effect that the defendant Company belonged to Craig and Talia. To the extent that any human being personified the Company, it was Craig. Again, in so far as the Company by its pleadings has sought to assert rights under the Farming Agreement, it has ratified it. Section 126 of the Commonwealth Corporations Act 2001 provides, inter alia:

"(1) A company's power to make ... a contract ... may be exercised by an individual acting with the company's express or implied authority and on behalf of the company.

(2) The power may be exercised without using a common seal."

1. The singular includes the plural: see the Commonwealth Acts Interpretation Act 1901, s23.
2. In my opinion, the Farming Agreement should be taken to be an agreement entered into by the defendant Company with Mr and Mrs Blain signing as agents on its behalf.
3. I find that the signatures on the Farming Agreement purporting to be those of Darin and his wife are genuine. I make this finding cognisant of the provisions of s140 of the Evidence Act 2008, which provides:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged."

and of the statements of principle in the seminal judgment of Sir Owen Dixon in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. I make this finding and all others in these reasons based on an actual persuasion of the occurrence or existence of the relevant facts, rather than a mere mechanical comparison of probabilities independently of any belief in their reality: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361, per Dixon J as he then was.

1. In these circumstances, where inconsistencies in the brothers' accounts cannot otherwise be resolved, I will prefer the evidence of Craig over that given by Darin.

1. There are three brothers in the Blain family. Darin is the eldest, two years older than Paul, the middle brother; and the defendant Craig is younger than Paul by nine years. (T2065, L13-15)
2. As to the wide range of matters in dispute between the plaintiffs and the defendants, the accounts given by Darin on the one hand and Craig on the other are frequently - almost invariably - in flat contradiction of one another. Resolution of these inconsistencies needs to be sought primarily by reference to the inherent probability of the accounts given by the one brother or the other and by the conformity of those accounts with contemporary documents and other contemporary evidence. Where the inconsistencies cannot be resolved by these means, it will be necessary to resolve the conflict of accounts by a credibility finding. I have already explained why I reject Darin's denial of having executed the Farming Agreement and his description of a meeting at his brother's house on the porch in February 2012 at which he stated his refusal to sign to Mr Sinclair of Rabobank. This cannot be explained away as a quirk of memory or a misunderstanding.
3. One of the final witnesses at trial giving evidence for the defendants was the middle brother, Paul, who was engaged as an intermediary in trying to resolve issues such as the "exchange of prisoners" in the form of car wrecks belonging to the respective brothers in circumstances where they were precluded from being in direct communication with one another because of family violence intervention orders. He described a process which seemed somewhat reminiscent of the legendary Dr Henry Kissinger's "shuttle diplomacy". He said that Darin, perhaps understandably, was not releasing property, in particular a car wreck claimed by his brother, "until I get my money". (T2070, L14-16) According to Paul, Darin also told him on a number of occasions "I don't give a fuck, I'm going to send him broke." (Ibid, L21-22) Paul was not challenged as to this in cross-examination. A remark such as this - repeated, apparently - appears indicative of a desire to do more than merely enforce legitimate legal rights supported by true evidence.
4. In Closing Submissions, Mr O'Haire on behalf of the defendants made a concerted attack upon the credit of the first plaintiff, Mr Darin Blain. It was contained in an annexure to his written submission consisting of no fewer than 44 paragraphs. At the outset, he referred to Mr Darin Blain's evidence that he had given the appearance to Rabobank of a willingness to execute the Farming Agreement which was drawn by Mr Sinclair with the intention of refusing at the last minute when matters had proceeded too far. This refusal was, according to Mr Darin Blain, ultimately given at a meeting in February 2012. Were one to accept Mr Darin Blain's account as just described (which I have not), it would indicate a streak of ruthlessness in his character. In itself it would not, to my mind, affect his credibility as a witness.
5. One matter of greater significance as to Mr Blain's credibility relied on by Mr O'Haire pertained to a bank statement at CB 1985 showing a handwritten annotation "Year 2 lease $18480.00". Mr Blain said the annotation was added before he forwarded the statement to his accountant. Mr Blain denied that the annotation was made for the purposes of the proceeding and not prior to submission to his accountant contemporaneously (T818, L2-11). Mr O'Haire then showed Mr Blain a further copy of the relevant statement which he said had been obtained by his client as part of the discovery process. Mr Blain accepted, as he necessarily had to, that the annotation was absent (Ibid, L24-29). Further pressed, Mr Blain said, "Well, it just depends whether - I don't know where these come from or what's going on here any more, after all the documentation. I'm not sure what's going on" (T819, L6-9). These events fortify me in my conclusions as to credit.

1. The plaintiffs claimed an entitlement to rental for both out paddocks for the entire seven years of the joint venture. (Statement of Claim, paragraph 12) The plaintiffs said that the defendant failed to pay rent for the out paddocks in the sum of $61,086.30 inclusive of GST, referable to a 2018 tax invoice. (Defence and Counterclaim, paragraphs 22-23)
2. The claim as framed encountered the immediate difficulty that it is either wholly or at least partly inconsistent with the terms of the Farming Agreement (see [21] above under the sub-heading "Use of Outpaddock"). I have already explained why I accept this Farming Agreement as establishing valid obligations between the parties. This is not the end of the matter, however. As noted, the joint venture had access, not to one out paddock, but to two.
3. In Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420, an issue of construction arose. McTiernan, Webb and Taylor JJ, said:

"It is trite law that an instrument must be construed as a whole. Indeed it is the only method by which inconsistencies of expression may be reconciled and it is in this natural and common sense approach to problems of construction that justification is to be found for the rejection of repugnant words, the transposition of words and the supplying of omitted words ... Many illustrations may be given of the circumstances in which these processes have been followed but to do so would add nothing to the rule that the intention of the parties is to be ascertained from the instrument as a whole and that this intention when ascertained will govern its construction." ((1956) [1956] HCA 53; 95 CLR 420, 437)

1. This case and their Honours' dictum has been cited and applied literally hundreds of times since, notably by the New South Wales Court of Appeal in Westpac Banking Corporation v Tanzone Pty Ltd [2000] NSWCA 25; (2000) 113 NSWLR 73, where, according to the headnote, the Court, consisting of Priestley and Fitzgerald JJA and Foster AJA, held:

"If a literal construction of a clause in a contract leads to an absurd result, then the clause should be construed by supplying, omitting or correcting words so as to avoid the absurdity. Mere unreasonableness is not sufficient to justify the application of the absurdity rule." ((2000) [2000] NSWCA 25; 113 NSWLR 73)

1. Here, the case for "absurdity" may not be as strong as it was in the Westpac case just referenced. Nevertheless, it is common ground that the joint venture agreed upon by the parties was to have access to two, not one, out paddocks. The apparent drafter of the Farming Agreement, Mr Sinclair of Rabobank, would have been well aware of this. His bank had financed the acquisition of Out Paddock 2 only a few months previously. The literal wording of the Farming Agreement would leave the issue of out paddock rental relative to Out Paddock 2 at large. This Farming Agreement was specifically required by the bank. In its proposal for the loan facility to finance the joint venture (presumably authored by Mr Sinclair), it was noted prophetically:

"An additional risk area is a breakdown of the relationship and/or one party wishing to discontinue. They will have an agreement in writing covering terms and conditions of sale, finance, and exit strategy. To be provided to the Bank." (CB 1963)

1. A draft which left open Out Paddock 2 as a point of uncertainty and a bone of contention would scarcely advance this objective. There was no reason suggested as to why the brothers might wish to deal with Out Paddock 1 differently from Out Paddock 2. In my view, an inference should be drawn that the singular reference to an out paddock, rather than to the two out paddocks, was a mistake which ought to be corrected in the process of construction in accordance with the principle of Fitzgerald v Masters.
2. It follows that there was no general obligation on the part of the defendant Company arising out of the original terms of the joint venture to pay rent on the out paddocks. Such obligation or obligations arose only as a result of what was agreed to after the formation of the joint venture and during its term. I dealt with the evidence as to those issues in paragraphs [54] and [55] above. Conformably with my preference for the evidence of Craig over that of Darin, I accept that there was no liability on the part of the defendant Company to pay rent for the out paddocks before year three. The plaintiffs' claim, insofar as it proceeds on the basis that the rental that was paid was referable to the first two years, therefore leaving later years unpaid, must fail.
3. This conclusion is subject to the complication for rent for year seven of the joint venture. As noted at paragraph 48, the final three years of rental was paid by Craig to Darin in a cheque which calculated the rental at $150 per acre per annum. That cheque was never presented; it was returned or torn up at the mediation on 3 July 2018. Therefore, the plaintiffs' claim is for rental at the rate of $170 per acre per annum for the years 2016, 2017 and 2018. First, a lessor does not have an entitlement unilaterally to increase rental absent a specific clause giving this power. It is plain that the defendants never agreed to the increase in rental. A landlord whose tenant declines to agree to a rental adjustment in the case of a periodic tenancy, which this seems to have been, would be entitled to serve a notice to quit. Since the tenancy was not for any definite term, but required payment of rental on an annual basis, it would appear to be properly characterised as a tenancy from year to year (Moore v Dimond [1929] HCA 43; (1929) 43 CLR 105, 114). Whilst a tenancy from year to year terminates at the end of the year without necessity for a notice to quit, if occupancy continues thereafter a notice to quit would be required ((1929) [1929] HCA 43; 43 CLR 105, 113). A notice to quit relative to a tenancy from year to year requires six months' notice (Landale v Menzies [1909] HCA 48; (1909) 9 CLR 89, 101 per Griffith CJ). No such notice was served. No doubt a landlord of a tenant who declines to agree to a rental increase is at liberty to force the issue by serving a notice to quit. Here, no valid notice to quit was served and therefore there was no valid increase in rental. The purported unilateral increase in rental was ineffective. It follows that the cheque tendered on behalf of the defendant Company should have been accepted.
4. The debt for the three years of rental therefore was conditionally discharged by the tender and acceptance of the cheque for rental at the rate of $150 per acre per annum (Tilley v Official Receiver [1960] HCA 86; (1960) 103 CLR 529; TEA (1983) Ltd (In Liq) v Uniting Church (NSW) Trust Association [1985] VicRp 12; [1985] VR 139). The condition as to discharge was not satisfied in the present case; not, as in Tilley or TEA, because the cheque was dishonoured on presentation, but rather because Darin declined to present it.
5. On behalf of the defendant, Mr O'Haire submitted (Closing Submissions, paragraph 834):

"The Partnership's claim for rent in respect of the Out Paddocks ... rests entirely on the validity of the 19 July 2018 invoice. As noted above, the 19 July 2018 [invoice] was not a valid invoice. The Partnership's claim for rent must accordingly fail in its entirety."

1. I cannot accept this contention. It proceeds on the basis that the invoice was relied upon to the exclusion of any underlying indebtedness as a basis of liability - as if, for instance, a claim were made pursuant to a bill of exchange without regard to any underlying indebtedness upon which it might be based. The matter was not pleaded in this way; rather, the claim was that an underlying indebtedness for rent existed which was properly described in the invoice. The true issue arising here is one as to tender. Darin appeared to accept the personal cheque offered, but then months later returned or destroyed it. According to Halsbury's Laws of Australia [current to 18 March 2022], to discharge a debt by tender:

"In the case of a tender of money, the tender must be a legal tender, that is, of notes or coin issued by the Reserve Bank, of not less than the correct amount. The tender of a cheque or other negotiable instrument is not legal tender unless the instrument has been accepted as such or the creditor is estopped by conduct from complaining or has otherwise waived the requirement of a tender in cash. (Paragraph [110-8065])

1. The learned editors referred inter alia to a decision of Nicholson J, sitting in the Supreme Court of Victoria, in Paynter v Willems [1983] VicRp 98; [1983] 2 VR 377, 384. His Honour had to determine whether in the circumstances a personal injury proceeding had been settled. He determined, first, that there had been an accord executory to settle the proceeding for $20,000 plus costs, referring to Howes v Miller [1970] VicRp 68; [1970] VR 522 (which his Honour distinguished). He next had to consider whether in the circumstances there had been an effective tender so as to discharge the defendant's liability on the settlement, where a solicitor acting for the defendant had tendered a personal cheque for $20,000. His Honour was referred to a passage from Halsbury's Laws of England, Vol 9, Para 524, "to the effect that tender by cheque ... is not a legal tender." His Honour noted that the passage from Halsbury's Laws of England continued:

"that if the creditor makes no objection to form but refuses to accept the cheque on the ground that a larger sum was due or on any other ground, he will be considered to have waived the objection to tender as regards form." ([1983] 2 VR 377, 384)

1. The present situation appears to fall squarely within the exception identified by Halsbury's Laws of England and applied by Nicholson J. Halsbury's Laws of Australia, in the paragraph quoted, also states that the provision of a personal cheque may be an effective tender if "the creditor is estopped by conduct from complaining or has otherwise waived the requirement of a tender in cash." Without pursuing the detail of this further legal proposition, I observe that the evidence indicated that previous payments as to rent and otherwise between the joint ventures had been made by cheque. More specifically, Mr Darin Blain stated that he wished to be paid by cheque because this enabled him to manipulate the year of income in which the relevant payment was seen to be derived for income tax purposes (T235, L24-31).
2. The appropriate sum of money for rental having been tendered and not accepted, the claim for rent must fail. I reach this conclusion on the assumption that the personal cheque which Darin destroyed purported to cover rental until 31 December 2018. If that were not the case, then the logic of what I have said would entitle the plaintiffs to rental on the out paddocks at the rate of $150 per acre until 31 October 2018 and from the end of the period which the destroyed cheque covered.
3. As we will see, the defendant Company brings a counterclaim based on the service upon it of a "tax invoice" cum notice set out at [51] above. I have determined this element of the counterclaim favourably to the defendant Company. Nevertheless, as Ms Harris observed relative to the counterclaim, whilst the notice referred to the lease expiring on 31 September 2018, it continued to be available to the defendant for general farming purposes as distinct from silage harvesting until the end of October. The plaintiffs therefore would be entitled to judgment for rental for that final month.

1. According to paragraph 24 of the Statement of Claim, the plant and equipment in "Appendix E", in fact described as "Annexure E", being partnership plant and machinery, was maintained and repaired, and the defendant Company failed to contribute either labour or a 50 per cent cash outlay towards such maintenance and repair (paragraph [25] of the Statement of Claim). The failure of the defendant Company to provide either labour or financial contribution inflicted loss and damage upon the plaintiff partnership. The particulars of such loss and damage were said to be contained in the Annexure.
2. The first item the subject of the plaintiffs' allegation of failure to maintain, as listed in Annexure E, is a Case Tractor. At paragraph 476 of Ms Harris's Closing Submissions on behalf of the plaintiffs, she said "The claim is for a repair about 6 months after the JV ended." She referred to evidence given by Darin at T197-198. Darin complained that this tractor "had faulty throttle sensor and PTO brake and obviously a remote bank wasn't operating when it was returned which I had Agrimac, which is a Case dealership, come in and repair it." (T197, L27-31) The plaintiffs seek 50 per cent of the cost of that repair for a tractor acquired by the partnership in 2009.
3. As to the basis for the claim under Annexure E in reply submissions, Mr O'Haire noted a contention in Ms Harris's Closing Submissions at paragraph 133:

"The Partnership submits that the parties agreed in 2012 that as and when the Partnership's plant and machinery needed to be replaced, the parties would discuss and agree the contribution each party would make towards the replacement of that plant and machinery. The Partnership, by Annexure E, has calculated the contributions to be made for the replacement cost of its plant and machinery based on the percentage of the life of the machine it was used for the JV."

"does not support the claims made by the Partnership in Annexure E; an agreement to discuss and agree a contribution as and when machinery needs to be replaced is, self-evidently, not an agreement to make a contribution in respect of all equipment, irrespective of when (or even whether) it is in fact replaced, calculated by reference to its percentage use during the JV."

1. Ms Harris at paragraph 473 of her Closing Submissions said:

"The Partnership submits that the Company cannot avoid the detriment caused to the Partnership simply because 31 October 2018 was the last day of the JV. There needed to be a necessary temporal nexus between the repairs undertaken or replacement of Partnership plant and machinery after the JV had ended for liability to attach to the Company."

1. The initial issue of principle for determination is whether, once the joint venture is concluded, the former venturers are liable to one another for repairs made after the venture but allegedly required by the use of the item of plant and equipment during the term of the venture.
2. Had the joint venture been structured as a partnership under the Partnership Act 1958, at its conclusion there would have been a taking of accounts, and, in that taking of accounts, depreciation of plant and equipment would have been reflected in the respective rights and liabilities of the former partners under s48 of the Act. In the present case, however, the plaintiffs' contention, in a heading between paragraph 41 and 42 of Ms Harris's Closing Submissions, is that "The JV was not a partnership within the meaning of the Partnership Act 1958".
3. Further, there was no attempt in the evidence to disclose how the items of plant and equipment the subject of post-joint-venture repairs had been dealt with in the plaintiff partnership's management or accounts prepared for the purposes of income tax assessment. Presumably they were depreciated as between the plaintiffs in their partnership. The value of plant and equipment would have been adjusted to reflect depreciation. The accounts might have made a provision relative to the costs of depreciation. Nothing like this has been done in the case of the joint venture.
4. With some hesitation, I accept the contention advanced by Mr O'Haire for the defendants that the obligation to contribute "50/50" the costs of maintenance was one that was operative only during the term of the joint venture. In the case of partnerships structured as per the Partnership Act 1958, dissolution and the taking of accounts provides a process for the adjustment of these sorts of issues between the partners or former partners. It is plainly inconvenient, and certainly not so obvious as to go without saying, that claims for readjustments as to the costs of depreciation (as reflected by repair costs) could continue to be made after the dissolution of the joint venture, presumably limited by nothing other than the Limitation of Actions Act 1958. All claims for the cost of repairs after the end of the joint venture must be rejected.
5. It follows that the claim relative to repairs to the Case Tractor carried out after the conclusion of the joint venture must fail.
6. A second Case Tractor is the next item in the annexure. According to Darin, this second Case Tractor was replaced in 2020, having completed 6,500 hours, but "had had other problems with it. Just wear and tear during the period it's been used." According to Darin, outlays were made for the repair of the tractor in 2019. (T198, L19-31)
7. Item 3 was another tractor: namely a Fiat 82-94. This item of plant seems to have been traded-in in March 2020. (CB 1184) Since I have not accepted that there was an obligation to make post-joint-venture contributions to repair, a fortiori a claim for the cost of replacement must fail. Darin complained that upon termination of the joint venture, the tractor "come back to me with no split shift which is like every gear has got a middle gear. That didn't work. No aircon, no lights." (T199, L28-31)
8. The next item is a Mole Drainer. According to Ms Harris, referring to Darin's cross-examination at T978, this item was "used in year 1 of the JV and not again until after the JV had ended. A third party contractor was retained to undertake mole draining on the Farms." (Closing Submissions, paragraph 479) The repair claimed for here was carried out in February 2020. For reasons already given, this post-joint-venture repair claim must fail. Given that, even upon the basis of the plaintiffs' evidence this item received very limited use during the joint venture, it would not obviously be equitable to require the defendant to pay 50 per cent of the cost of repair.

1. Having regard to the events that occurred during the trial and the "split" ordered by Judge Ryan and Judicial Registrar Bennett, the plaintiffs' counsel, Ms Harris, formulated a modified Annexure H as follows. Paragraph 49 of the statement of claim alleged that the defendant Company, without the consent of the plaintiffs, "retained possession and use of the Joint Venture Plant and Machinery on Farm 1 to the exclusion of the [plaintiffs]". These items were described in Annexure H:

Description of Joint Venture Plant and Machinery

There is such equipment which Defendants have, but the Plaintiffs were not charged for that equipment

In respect of the amount claimed, as 4 hay rings were purchased. Plaintiffs retained 3 and the Defendants retained 1.

There is such equipment which Defendants have, but the Plaintiffs were not charged for that equipment

½ Pallet of Animal mineral solutions (AMS) lick blocks/bags

(Transferred by the Partnership during the trial from Annexure I to Annexure H, without objection from the Defendants)

Two jointly purchased augers. The Partnership has one and the Company has one. The Company has the auger cut from the silo in 2018.

1. The equipment was not joint venture plant and equipment:
   1. and the Defendants have the plant and equipment.
   2. and the Defendants don't have the plant and equipment.
2. The equipment was joint venture plant and equipment, the amount is agreed and the Defendants have retained that plant and equipment.

1. The equipment was joint venture plant and equipment, the amount is agreed and the Defendants have not retained that plant and equipment.

1. The equipment was joint venture plant and equipment, the amount is disagreed and the Defendants have retained that plant and equipment.
2. The equipment was joint venture plant and equipment, the amount is disagreed and the Defendants have not retained that plant and equipment.

1. There is a document supporting the claim.
2. There is no document supporting the claim.
3. It is unclear from the document how the amount of the claim was quantified.

1. The first item in the revised annexure is described as "towable grain feeder". Ms Harris noted that there were photographs of this item at CB 1314-1315 and that the brothers referred to it in evidence as the "mobile grain feeder". According to Craig, this was an item that "Darrin [sic] built and I helped him build it, some of it." (T1483, L15-17) Craig, apparently disagreeing with his brother, said that this item was transportable:

"Because it folds in half and hooks on to any tow bar, whether it's a ute or a motorbike, and you can tow it down the road, as we have done multiple times during the joint venture." (Ibid, L22-25)

1. He said at the end of the joint venture "It was in very good condition". (Ibid, L26-27)
2. In cross-examination, Darin said that "I built [it] in the mid-2000s." I take this to be a reference to some year between the year 2000 and 2010. He agreed that he "retained it at the end of the joint venture", stating "Yes, I owned it." Darin disagreed that this feeder could have been used in lieu of the coffin troughs which are another item in dispute between the parties. (T983, L12-16, L26-30) According to Darin, this mobile feeder was not strong enough for that purpose. (Ibid, L29)
3. It will be recalled that Annexure H is a list of items allegedly retained by the defendant Company, thereby depriving the partnership of the benefit of such items. Given Darin's admission that he retained it at the end of the joint venture, but that it could not, for lack of durability, substitute for the coffin troughs which are otherwise in dispute, it is difficult to see how this item can properly be the subject of a claim under paragraph 49 of the Statement of Claim; nor is it obvious how the table attributes its possession to the defendant Company. Ms Harris referred to evidence from Darin given in cross-examination that, despite his brother's evidence that the feeder was in good condition at the end of the joint venture, "the [defendant] Company tried to fix it and couldn't fix it to fold up and be transported" (T983, L19-22), stating that therefore the defendant "needs to account for the cost of a replacement towable grain feeder", which would be an issue at a quantum hearing. (Closing Submissions, paragraph 374)
4. Given that Annexure H and paragraph 49 deal with retention or alleged retention of items by the defendant Company and not issues of repair, I do not follow this contention.
5. I am further perplexed by the statement at paragraph 636 of Mr O'Haire's Closing Submissions, which states:

"Annexure H to the 2FASOC sets out the jointly purchased plant and machinery that the Partnership alleges that the Company retains. The annexure does not include any items that were retained by the Partnership."

1. He correctly observed in the previous paragraph of his outline that:

"Each of the Partnership and the Company allege a term of the JV Agreement requiring an even split of the equipment purchased jointly during the JV."

1. If Mr Darin Blain's evidence in cross-examination from T983 is to be believed, the mobile feeder stands entirely outside this regime, because:

(a) it was constructed before the establishment of the joint venture, and

(b) after the end of the joint venture it was retained by the partnership and not by the Company.

1. If I were wrong as to all these matters I would prefer Craig's evidence that the feeder was in working order at the end of the joint venture to Darin's that it was not.
2. The next item from the revised schedule raised by Ms Harris in her Closing Submissions was an "irrigation pump". Darin said it was purchased "around 2014 ... the defendants purchased it." (T557, L1-3) He said he, viz the partnership, was charged "50 per cent for it". (Ibid, L4-5) He conceded there was no documentary evidence for this purchase. He said that the monthly charges rendered to the partnership were too vague to enable this matter to be identified, and the seller of the pump had told him that no copy invoice could be provided. (Ibid, L6-15)
3. When Darin was cross-examined by Mr O'Haire, he put it to him that "the [defendant] Company provided an irrigation pump to the joint venture at no cost to the partnership". Darin said in response "I believe we were charged for [it]". (T737, L9-12) He thought the charge was $1,500. (Ibid, L17-19)
4. CB 962 is a handwritten invoice for a second-hand irrigation pump for $3,000, marked "paid in full". Asked about this document, Craig conceded that he had obtained this document from one Peter Rowe, "who I purchased the pump off", with the invoice provided "some time in the last 12 months". (T1459, L12-15) Craig said that the pump was acquired principally to irrigate summer crops, which, whilst part of the joint venture business, were disapproved of by his brother. He said he had not asked his brother to share the cost. (Ibid, L16-31) Ms Harris (Closing Submissions, paragraph 381) suggested that if this were true, it was a calculated deception which reflected adversely on Craig's credibility. He had sought to avoid the summer crop being "detected".
5. I do not see anything in these matters which reflects adversely on Craig's credit. He readily admitted that the invoice was not a contemporaneous document. As to summer crops, whilst it seems Darin had no interest in them, there was nothing in the evidence to suggest that they were in themselves inimical to the joint venture. Given the preference which I have expressed for the evidence of Craig over that of Darin in the case of conflict, I conclude that since the irrigation pump was funded by the Company, the partnership has no valid claim with respect to it.
6. The next item on the revised Annexure H is "3x Hay rings". According to Ms Harris (Closing Submissions, paragraph 388):

"The [plaintiff] Partnership claimed in Annexure A that they had provided 6 [hay rings] at the commencement of the JV and the Defendants said 4 were provided. The common ground was that at the commencement of the JV, 4 hay rings had been provided. Two are in issue."

1. After a further comparison of annexures, she said at paragraph 392:

(a) the Partnership provided 6 or 4 hay rings at the commencement of the JV ..., and if 6, whether 2 were not returned to the Partnership;

(b) the JV parties purchased 3 or 4 hay rings".

1. She said only liability needed to be determined. She referred to the evidence of Mr Jayden Blain, the son of Darin, to the effect that when he commenced "as a paid employee in 2010", viz before the joint venture began, there were "a total of five" hay rings in use. (T1208, L12-22) She noted Craig's evidence to the effect that at the beginning of the joint venture, because of the recent acquisition of Out Paddock 2, "we needed more hay rings". (T1460, L15-20) He did not say how many hay rings were purchased at that time. Consequently, Ms Harris said (Closing Submissions, paragraph 398), the joint venture had at least six hay rings: "That leaves two hay rings for the [defendant] company to account for." She noted that, according to Darin, in 2019, after the conclusion of the joint venture, the partnership purchased a 17-head hay ring (CB 937). This was indicative of the fact, she and Darin contended, that the defendant had not returned or accounted for one or more hay rings. (T295, L26 - T296, L18)
2. Mr O'Haire said (Closing Submissions, paragraph 654):

"The parties agree that there were four hay rings purchased jointly. ... each party accepts that it had one hay ring at the end of the JV. The dispute is as to which party retained the remaining two hay rings."

1. He referred to Darin's evidence in cross-examination that the plaintiffs' case was that they "retained one", and the defendant Company "retained three". (T1015, L27-29)
2. Mr O'Haire (Closing Submissions, paragraph 656) noted that Darin gave no evidence as to the acquisition of hay rings, their use, or their fate. He said at paragraph 658:

"The Court should ... accept Craig's evidence, reject Darin's evidence, and find that, at the end of the JV, the Partnership was in possession of three of the four hay rings jointly purchased during the JV."

1. Ms Harris referred to the evidence given by Jayden Blain, noting his standing as a teacher and to some extent a neutral party as between his father and his uncle. I accept that Jayden Blain should be regarded as a witness of credit. I accept his evidence.
2. Mr O'Haire said (Closing Submissions, paragraph 656):

"... it could be inferred that the hay rings at the start of the JV, if they existed, were unusable at the end of the JV, and that the hay rings the Partnership retained at the end included the three hay rings the Company alleges it had."

1. Accepting Mr Jayden Blain's evidence as a witness of credit who might be regarded as neutral, it covers only the situation in 2010. Seven years on, matters might have changed in the manner suggested by Mr O'Haire. Accordingly, I would resolve the issue of the hay rings in favour of the defendant, given my general preference for the evidence of Craig over Darin.
2. The next item on the revised annexure is described as an "Engel fridge". According to paragraph 401 of Ms Harris's Closing Submissions, this item "was a 'bonus' provided to any purchaser who purchased a certain minimum volume of drench". The Company made such a purchase, albeit having charged the plaintiff partnership its share. She said the Company retained this fridge. Darin described it as "a compressor fridge, like a travel fridge". (T558, L6-7) Darin said that since this refrigerator was a "free gift" based on the trade generated by the joint venture, it should be regarded as jointly owned. (Ibid, L15-17) Ms Harris said (Closing Submissions, paragraph 412):

"The [plaintiff] Partnership seeks an accounting of the value of the fridge and that is a question for the quantum hearing."

1. Mr O'Haire said (Closing Submissions, paragraph 661):

"The item is a travel fridge, that was not used for the purposes of the JV."

1. He said Craig gave evidence that Darin told him he already had an Engel fridge, and that he and Talia could keep it, which Darin denied. He referred to the evidence of Craig, who said Darin told him " 'You keep the Engel fridge' when we ordered the drench." (T1873, L17) He said this occurred "in or around 2015 or 2016". (Ibid, L23-24)
2. As with a number of items where there is no documentary or other contemporary evidence apart from the conflict of oaths, resolution is difficult. I have generally, for the reasons explained earlier, preferred the evidence of Craig to that of Darin. The argument that the fridge was not used for the purposes of the joint venture seems to me neither here nor there. It was, in effect, awarded to the joint venture. Ultimately, albeit with some hesitation, I will accept the account given by Craig. This item is determined in favour of the defendant Company.
3. The next item in the revised schedule is a 1,000-gallon green poly trough. Ms Harris said (Closing Submissions, paragraph 413):

"[T]he Defendants admitted that this green poly trough was JV plant and machinery. The Partnership holds the Defendant to that admission."

1. She noted Craig's evidence said that the poly trough located on Farm 1 "was there well before the joint venture started". (T1875, L12)
2. Mr O'Haire said that the plaintiffs had led no evidence as to the ownership of the poly trough. (Closing Submissions, paragraph 668-670) Mr O'Haire's observation appears to be accurate. Ms Harris provides no reference to identify the admission as to the poly trough which she said was made. Absent such a reference, I determine the poly trough issue favourably to the defendants.
3. The next item on the revised Annexure H is a 22,500-litre poly tank. Ms Harris said that in Annexure B the defendant admitted that this tank was property of the joint venture. She said (Closing Submissions, paragraph 416) that Darin had said there was an existing poly tank on Farm 1 which supplied water to the house which he and his wife had occupied from 1993 onwards. She referred to evidence given by Darin in cross-examination to the effect that a second poly tank, the 22,500-litre one, had been installed after he, Darin, ceased to reside on Farm 1 (presumably during the term of the joint venture); at any rate, early in that period. (T1018, L7-21) I asked who paid for it, and Darin replied "We both did, a partnership". (Ibid, L22) I take it the "both" he referred to was a reference to the partnership and the Company, not to himself and his wife. Darin denied that the defendant Company had solely paid for the tank. (Ibid, L23-25)
4. Mr O'Haire took Darin to what he said was an invoice dated 18 January 2013 for a 22,500-litre water tank. Confusingly, it seems there are now three water tanks on Farm 1. (T1019, L2-18) Darin said that of the three tanks now on Farm 2, the claim that the partnership was mounting was for the second one. (T1020, L21-24) The one which Mr O'Haire was cross-examining about was apparently invoiced in January 2013. This would appear to answer the description given by Darin of an additional tank being installed early in the joint venture. Ms Harris (Closing Submissions, paragraph 417) said:

"No monthly tax invoice issued for JV expenses proximate to January 2013 was produced by either party to show that the 22,500 litre tank was charged to the Partnership (or by omission, was not). It is oath on oath decision."

1. Mr O'Haire (Closing Submissions, paragraph 671-677) contended that Darin's evidence was unsatisfactory and ought to be rejected. There was no documentary evidence to back up the claim that the plaintiffs paid for half this tank. Darin's account was hard to follow. He conceded:

"I'm even getting confused myself on which tank that is." (T1019, L28-29)

1. The uncertain nature of Darin's evidence and my general preference for the evidence of Craig leads me to determine this issue in favour of the defendant.
2. Ms Harris then turned to the next item in the revised Annexure H, a Davey fresh-water pump. Ms Harris noted that Darin alleged that this pump was bought during the joint venture contemporaneously with the 22,500-litre tank dealt with above. Craig said that the pump pre-existed the joint venture. There was no documentary evidence to assist the determination on this matter.
3. Mr O'Haire (Closing Submissions, paragraphs 678-680) urged me to accept Craig's evidence. Given my preference for Craig's evidence over Darin's, this issue is also determined in favour of the defendant.
4. Item 18 of the revised Annexure H was a hoof trimmer, or "set of hoof trimmers". Mr O'Haire referred to evidence given in chief by Darin (T228, L19 - T229, L11) that the partnership brought an original set of hoof trimmers into the joint venture which were not returned, but a further set of hoof trimmers were bought during the term of the joint venture. He said in cross-examination Darin admitted to having retained an old set of hoof trimmers after the end of the joint venture. (Closing Submissions, paragraph 685) In cross-examination Darin said:

"We purchased a brand new one [hoof trimmers] and that was not there at the end of the joint venture." (T1078, L15-17)

"[T]here was an old one that I was left with and there was a brand new one that was purchased in whatever year, but it's not there any more." (T1078, L25-29)

1. Mr O'Haire noted the absence of documentation such as an invoice for the "brand new" set of hoof trimmers, nor any evidence to the effect that the "brand new" set of hoof trimmers was in the Company's possession, as distinct, for instance, from being lost. (Closing Submissions, paragraph 686)
2. Ms Harris complained that Craig gave an account to the effect that the brand-new set of hoof trimmers were kept on Farm 2 for use "in a specialised crush". She submitted (Closing Submissions, paragraphs 427-9) that Darin's evidence should be accepted and it should be found that the set of hoof trimmers was purchased during the term of the joint venture and was retained by the Company.
3. Given my preference for the evidence of Craig over Darin, this matter is determined in favour of the defendant.
4. The next item in the revised Annexure H dealt with by Ms Harris was a "consumable" in the form of half a pallet of Animal Mineral Solutions (AMS) lick blocks/bags. She said by the terms of the original Annexure H the defendant admitted that this item was bought during the joint venture but consumed prior to the end thereof. She said an invoice for the lick blocks was to be found at CB 1993. She said (Closing Submissions, paragraph 435) that the plaintiffs required the defendant Company "to account for 50% of the ½ pellet [sic] of lick block". She noted that Craig described these items, or perhaps their remains, as having been discarded at the conclusion of the joint venture because the bags were falling apart. (T1467, L11 - T1468, L19) She complained (paragraph 438) that Darin was not cross-examined on these matters. She referred to a photograph taken by Craig's wife at CB 1920 as at early 2018, contending that this photograph:

"shows that there are a lot of bags on it [viz the relevant pallet], which do not appear to be in sound condition but simply abandoned there. This discredits Craig's version of events." (Closing Submissions, paragraph 440)

1. Mr O'Haire (Closing Submissions, paragraphs 645-646) said that Craig's evidence should be accepted and there was no evidence to the contrary. The photograph at CB 1920 was taken from some distance away. Even when viewed electronically on the computer screen, rather than in the hard copy reproduction to be found in the Court Book with which I have been working, it is insufficiently clear to make any confident judgments as to the issue. Certainly there appear to be a number of disintegrating bags of some product piled on the bonnet of a car wreck.
2. Accordingly, I accept Craig's evidence in the absence of any clear basis for the opposite conclusion. This item is determined in favour of the defendant.
3. The next item for consideration in the revised schedule is another consumable, namely fulvic acid.
4. Mr O'Haire (Closing Submissions, paragraphs 647-649) urged a finding that Craig's evidence ought to be accepted, to the effect that the defendant Company did not have any bag of fulvic acid in its possession at the end of the joint venture.
5. Ms Harris referred to evidence from Darin and his son Jayden as to the operation by Darin of a fertiliser plant, and a move away from conventional farming to biological farming. (Closing Submissions, paragraphs 443-445) She said pastures were fertilised about every five weeks, give or take a week, according to Craig. She said that according to Darin, the plaintiffs had two bags of that acid on hand at the commencement of the joint venture. (T262, L13-25) She said that according to Darin, the plaintiffs were left with no fulvic acid at the end of the joint venture. (T556, L16-20) She said (Closing Submissions, paragraph 448) that the plaintiffs' claim was to be reinstated to the position the partnership had been in prior to the joint venture: namely, possessed of two bags of fulvic acid. She said (Closing Submissions, paragraph 450) that the entitlement of the partnership to be reinstated arose from "the pleaded fiduciary duty that the company must not receive a benefit to the detriment of the partnership." She continued:

"[The company] has had the benefit of the fulvic acid, and the pastures maintained by its addition to the mix, but without compensating the Partnership at the end of the JV." (Closing Submissions, paragraph 450)

1. In placing reliance upon the fiduciary duty between joint venturers, Ms Harris conceded that there was no contractual obligation to account for the fulvic acid. Accepting that the two venturers owed fiduciary duties to one another, the breach alleged against the Company is misconceived. No doubt if the evidence proved that the fulvic acid was used by the defendant Company for a separate purpose outside the joint venture, it would be obliged to account for its depredations upon the joint venture property. However, since the operation on the pastures was for the benefit of the joint venture - presumably enhancing the production of milk - it bestowed a benefit on both venturers. This claim by the plaintiffs fails.
2. The last item on the revised Annexure H is described as "silo auger". According to Ms Harris, it was common ground that at the conclusion of the joint venture the plaintiffs owned two augers: one of which was retained by the plaintiff partnership, the other of which was retained by the defendant Company. She said (Closing Submissions, paragraph 409) that Mr O'Haire had conceded that:

"... the augers were not like-for-like as one was more expensive than the other and that it was an accounting issue for the quantum hearing."

1. Paragraph 51 of the Statement of Claim alleged "At and since the end of the Term, certain Partnership Plant and Machinery was on Farm 1", and the Company has failed to deliver or release such items to the plaintiffs. These items are listed in Annexure I. The first item in Annexure I, and the first item taken up by Ms Harris in her Closing Submissions, was the "coffin troughs". She said (Closing Submissions, paragraph 494):

"The return of the coffin troughs has been an issue ever since the JV ended, having been the subject of correspondence between lawyers and attempts to have them or some of them returned to the [plaintiff] Partnership."

1. She continued in the following paragraph, stating:

"The concrete troughs were used to feed calves, as they transitioned from feeding on milk only to fodder. Darin refers to them as lead feed troughs. Darin gave evidence that the 9 concrete troughs were all located on Farm 2." (Closing Submissions, paragraph 495)

1. She said that an aerial photograph of the farms at CB 1312 showed that six coffin troughs were lined up and surrounded by dirt to the right of the house. The other three coffin troughs are "located elsewhere on Farm 2". (Closing Submissions, paragraph 496) She said the evidence disclosed that Craig removed all nine coffin troughs to Farm 1 before the joint venture ended, without seeking permission. She said at paragraph 498 that photographs at CB 1308 and 1309 showed the partnership's coffin troughs on Farm 1.
2. Mr O'Haire referred to evidence from Darin that the plaintiffs had not paid for the coffin troughs, but "picked them up" somewhere, or that they were located on the farm when he first purchased it. (T968, L12-25; Closing Submissions, paragraph 717) He noted that according to Craig there were eight troughs, and at the start of the joint venture five were on Farm 2 and three were on Farm 1. (T1477, L4-12; 17-22) Mr O'Haire noted (Closing Submissions, paragraph 719) that the evidence of Darin and his son was that there were nine coffin troughs, all located on Farm 2 at the commencement of the joint venture. He said that a letter from the partnership's solicitor demanded the return of eight coffin troughs, and therefore the evidence on behalf of the partnership that there were nine ought to be rejected. (CB 1904-5; 1906)
3. Mr O'Haire said his client claimed the coffin troughs as being fixtures to Farm 1. (Closing Submissions, paragraph 734) He said:

"In relation to the object of annexation, the purpose of locating the troughs in the paddock on Farm 1 was plainly for the better enjoyment of Farm 1, and not the better enjoyment of the troughs themselves." (Closing Submissions, paragraph 737)

1. At paragraph 21 of his Closing Submissions, Mr O'Haire said:

"Whether an item is a fixture depends essentially upon the objective intention with which the item was put in place. The two relevant considerations relevant to determining this intention are:

(a) the degree of annexation; and

(b) the object of annexation."

"The degree of annexation refers to the extent to which an object is physically attached to the land. An item may be a fixture even if only attached to its premises by its own weight. An object does not become a fixture in technical sense merely because it is affixed to land."

1. He referred to TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576, 585 [24] per French CJ, Gummow, Heydon, Crennan and Kiefel JJ and Kay's Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VicRp 62; [1962] VR 429, 432-3.
2. These principles are established by a long line of authority reaching back well over a century. Whilst easy to state in the abstract, they are difficult to apply in practice. Typically an affixation is made both for the purpose of improving the realty and for the better enjoyment of the item as a chattel. It is difficult to determine which purpose is the predominant one and which should be regarded as the ruling principle in any particular case.
3. The coffin troughs, wherever located, rested only by their own weight. In that sense there was no affixation at all, though, as the authorities cited by Mr O'Haire show, this consideration is not conclusive against their being fixtures. It could not be contended that another object resting only by its own weight on land, used to contain feed or water for stock, would be a fixture - for instance, a cut-down 44‑gallon drum. On that view, what would make the coffin troughs fixtures would be simply their weight. An empty cut-down drum could be moved easily. The coffin troughs, as the evidence showed, required a forklift to move.
4. In my view the coffin troughs were not fixtures. That is not to say that coffin troughs located on a farm would not be regarded as passing with the farm upon its sale, even regarded as chattels. To take an analogy, a residential suburban house sold by an owner-occupier to a purchaser might have items such as a garden hose and a few gardening implements stored in a garden shed or garage. If those items were left behind, the obvious inference is either that they were regarded as "thrown in" to the sale or "gifted" by the departing vendor. This situation would stand in contrast, for instance, to an item of valuable jewellery left in a drawer inside the residence. Any coffin troughs located on Farm 1 at the time of its sale to Craig's Company would have passed to Craig at that time. The plaintiffs have no claim to such coffin troughs.
5. The difficulty of making a finding on this point, so many years after the event, is obvious. Putting to one side the issue of consequential loss, which would be one for a subsequent quantum trial, the intrinsic value of a coffin trough, or even all eight or nine of them, scarcely seems to justify the effort and the expenditure of resources in the legal system. These coffin troughs seem to have predated the brothers themselves. No doubt in the case of valuable heirlooms this antiquity is neither here nor there, but there is an absurdity in devoting so much time to an argument over these simple concrete structures.
6. Once again preferring Craig's evidence, I find that there were eight coffin troughs, five of which were located on Farm 2, and three of which were located on Farm 1. The plaintiffs' claim succeeds as to some five of the coffin troughs.
7. The next item the subject of the plaintiffs' claim in Annexure I is described as the "fertiliser plant". Ms Harris noted that the "fertiliser plant" was depicted in the photograph at CB 1319. (Closing Submissions, paragraph 509) She noted the defendants' contention that this plant was a fixture, being part of Farm 1. She referred to a decision of Conti J in National Australia Bank Ltd v Blacker [2000] FCA 1458 and the TEC Desert case. She said that according to Darin's evidence, the plant included a:

"black poly fertilizer tank with a 22,500 litre capacity [being] approximate [sic] 2.8m high x 3.5m in diameter. It rested on the ground by its own weight. It was not fixed to or annexed to the ground. Similarly, the green poly water tank of 9,000 litres and the stainless-steel vat. The Davey pump sat on the ground." (Closing Submissions, paragraph 513)

1. She said her clients' evidence to that effect was consistent with the photograph in the Court Book. She said Mr Sinclair, inspecting Farm 1 in 2010, "did not identify the 1-year-old fertilizer plant as a fixture". (Closing Submissions, paragraph 514)
2. On behalf of the defendant Company, Mr O'Haire contended that:

"the green water tank is plumbed in through the underground pipes to the water system on Farm 1, and is the only supply of water to certain parts of the house and garden"

and had been there since before the defendant purchased Farm 1. (T1485, L3-29; T1486, L4-26) He said under cross-examination his brother Darin ultimately conceded that the tank was plumbed through to the underground pipe. At T988, Mr O'Haire put to Darin:

"The tank that at least now supplies the water to the house and the garden taps, there is no other water supply for those places, is there?"

"Yes. You just hook the two pipes together and you have water that comes from the tank on the hill. You do not need to pull it out of that tank. That's where it come from originally."

"[T]here is no other place that supplies the garden taps and the places that are supplied from that green tank?"

"[O]bviously you could create a different supply arrangement but that hasn't been done and as of now the water goes through the green tank?"

1. Darin agreed. (Ibid, L10-13) Darin agreed that the "plant" was constructed in mid-2009 (T986, L30-31), viz before Farm 1 was sold to the defendant Company.
2. In the circumstances, the argument that this plant is a fixture is far stronger than was the argument for the coffin troughs. The item is "plumbed through", and, in so far as it furnishes a water source to the house and garden, it can be regarded as having been affixed not merely for its better enjoyment as a chattel but rather as an improvement to the realty. The plaintiffs' claim relative to this item fails.
3. As to the rest of the items in the annexure, Ms Harris (Closing Submissions, paragraph 516) said:

"Darin's evidence was that the Partnership owned [those other items]. He had been farming for decades by the time the JV started and the Partnership had, over time, acquired all that was used on day 1 of the JV. Darin was in a better position to know what the Partnership had acquired than Craig, who had prior to 1 November 2011 had only a 'quasi' employment role on the Farms."

"Like most people who have to buy plant and equipment for their business, those who pay tend to have better memories than those who just get to use it without being burdened with the upfront costs." (Closing Submissions, paragraph 517)

1. She said therefore (Closing Submissions, paragraph 518) that the plaintiffs made "a rounded submission that [they] owned each item and each of those items were not returned at the end of the JV."
2. Item 3 in the annexure is described as an "Auger". As to that item, Ms Harris said, "There's a duplication. There's an error." She therefore agreed that this item could be treated as "discontinued". (T256, L23-27)
3. The next item is described as "electric fence reels". Mr O'Haire said (Closing Submissions, paragraph 765):

"To the extent Darin gave evidence about this item, it appeared to be that it was in the wrong annexure."

"It was one of four electric fence reels. Possibly a replaced reel, I would say, looking at that." (T292, L1-3)

"This could be categorised in the wrong annexure and it's one of the electric fence reels in the joint venture plant and equipment. I may have put the wrong number on the top." (T293, L3-6)

"It probably should be in annexure B as item 17." (Ibid, L7-8)

1. Mr O'Haire referred to Craig's evidence as to electric reels that:

"If there was anything there at the start it would have been worn out and replaced because we purchased multiple electric fence reels during the joint venture." (T1490, L16-19)

1. As to whether the Company retained any fence reels, Craig said he was "unable to say for sure but I think it is highly unlikely." (Ibid, L23-24)
2. In this state of uncertainty, the claim relative to the electric reels fails.
3. The next item in the annexure is described as "Davey sump pump". Mr O'Haire sought a finding that the partnership retained the sump pump after the end of the joint venture. (Closing Submissions, paragraph 768) In the previous paragraph he referred to evidence by Darin that the sump pump was used on a regular basis and the joint venture could not have got along without it. (T323, L20-21, L29)
4. In cross-examining Darin, Mr O'Haire handed him a document which Darin agreed was the invoice relied on by the plaintiffs for their claim for a replacement sump pump, bearing date March 2020. (T993, L15-25) Mr O'Haire asked Darin how the plaintiff partnership had got on for 15 months without a sump pump, and Darin replied:

"I bought this because the other one went missing and the next time I needed it was now, this time." (Ibid, L26-30)

1. Mr O'Haire referred to Craig's evidence that the Company did not retain a Davey sump pump and that he had last seen this item on Farm 2. He said the defendant Company had bought its own sump pump from Timboon Plumbing at its own cost for use in the newly-reconstructed dairy on Farm 2. (T1491, L7 - T1492, L16) Mr O'Haire (Closing Submissions, paragraph 770) said that the invoice for the defendant Company's sump pump dated 29 October 2018 was to be found at CB 936. I accept Mr O'Haire's contentions. The plaintiffs' claim to this item fails.
2. The next item in the annexure is two hay rings said to have been acquired by the partnership, which the plaintiffs complained were not returned to their partnership at the end of the joint venture. Darin complained:

"We had a number of hay rings that weren't returned and we had to replace them." (T296, L6-7)

1. He referred to a tax invoice from a supplier at CB 937 dated 28 March 2019 which evidenced the replacement. (T295, L27 - T296, L7) I was not required to make any finding as to quantum relative to this item. The invoice was relied upon, presumably in support of the proposition that there would have been no need to purchase hay rings had the partnership not been deprived of one or more of them by the defendant Company. Mr O'Haire referred to and relied on the evidence of Craig that the defendant Company did not retain any hay rings which had been furnished by the partnership. (T1492, L18-23) Craig said:

"There was no hay rings on Farm 1 that were purchased prior to the joint venture ... We had one hay ring on Farm 1 at the end of the joint venture and that was one that was purchased secondhand during the joint venture ... Paid for jointly". (T1493, L2-9)

1. Craig said he thought there were "four [hay rings] that were purchased jointly". (Ibid, L21) He said the hay rings were "much of a muchness". (Ibid, L29)
2. I accept the contention by Mr O'Haire (Closing Submissions, paragraph 774) that the defendant Company:

"did not retain any hay rings at the end of the JV that had been provided by the [plaintiff] Partnership at the start of the JV."

1. The next item concerns two 12-foot steel gates. This item was abandoned in the course of trial. (T1494, L9-10)
2. A further item in the annexure was a claim for five litres of drench. Mr O'Haire (Closing Submissions, paragraph 778) said that the claim for this item was dependent upon the existence of a term in the joint venture agreement requiring the defendant Company to reinstate the level of consumable items as at the conclusion of the joint venture to the level at which they found themselves at the beginning. The Farming Agreement contains no such obligation on the defendant Company. It is common ground, however, that even if the Farming Agreement constitutes a set of enforceable rights and obligations between the parties to the joint venture, it is not purporting and does not purport to be exhaustive of the rights and obligations existing between the parties. Mr O'Haire dealt with the existence or non-existence of such a term relative to consumables in paragraphs 212-216 of his Closing Submissions. He said (paragraph 213) that there was no evidence of such a term relative to consumables, and that it had not been pleaded in the Statement of Claim. He also referred to Craig's evidence. Craig said in evidence-in-chief that there was no discussion as to the replacement of consumables at the conclusion of the joint venture. (T1306, L3-6) Mr O'Haire then contended (Closing Submissions, paragraph 215) that no term relative to consumables should be implied, because it was not so plain as to go without saying, and was not necessary to give business efficacy to the joint venture arrangement.
3. In a table at the foot of paragraph 62 of her Closing Submissions, Ms Harris summarised the terms pleaded by her clients as being part of the joint venture agreement. Some terms are express, but a majority are implied. Given that the plaintiffs' case did not recognise the Farming Agreement as having contractual force between the venturers, the predominance of implied terms is unsurprising. Ms Harris's summary does not include any term relative to the restoration of consumables at the conclusion of the joint venture. At paragraph 450 of her Closing Submissions, Ms Harris said:

"No party pleaded a contractual term that the Partnership be reinstated with consumables at the end of the [joint venture], which the Partnership had at the commencement. The right arises from the pleaded fiduciary duty that the Company must not receive a benefit to the detriment of the Partnership."

1. Assuming without deciding that the joint venture generated fiduciary obligations between the venturers, since there is no allegation that the "drench" or any other consumable was used other than for the purposes of the joint venture, I reject a contention that the use of the "drench" constituted a breach of fiduciary duty. The venture was a "joint" venture: that is, it represented the efforts of both venturers. Therefore, the consumption of the "drench" and other consumables was effected by both parties, which is another way of looking at my earlier point.
2. The claim for the drench fails.
3. The next item has been described as a "set of harrows". Whilst cross-examining Darin, Mr O'Haire announced:

"The [defendant] company's position is that these are scrap and have been on the scrap metal pile in farm 1 and that the partnership can have them back if it wants them." (T997, L25-28)

1. Darin said he did not consider that they were scrap, adding:

"... and the company were using them only months ago, but we do want them back, yes." (T998, L8-9)

1. Mr O'Haire said the harrows had reached the end of their useful life during the joint venture. (Ibid, L21-24) Mr O'Haire referred to evidence from Craig that the set of harrows which he was seen using had been borrowed from a neighbour. (T1495, L12-22)
2. It would seem therefore that the plaintiffs are entitled to relief in the form of an order for the delivery up of the harrows, should the plaintiffs wish such an order to be made.
3. The next item in the annexure is described as an "irrigator". Mr O'Haire said that the evidence given by Darin as to the history and status of the "irrigator" was uncertain and inconsistent. He said Darin ultimately conceded that at the commencement of the joint venture the irrigator was in the possession of a neighbour. Ultimately he agreed with me that he "acquired it originally, ... lent it to [the neighbour] and [the neighbour] gave it to [Craig]". Darin said he was not sure who returned it to whom, "but it was returned to me via - it may have been via Craig". (T999, L21-26) According to Darin, subject to the repair or replacement of a flat tyre, the irrigator was otherwise operative. (Ibid, L29-30) Darin rejected the contention that on return the irrigator required far more extensive repairs than merely the replacement of a flat tyre. (T1000, L2-7) The irrigator was used for summer crops. (Ibid, L8-9) Mr O'Haire told me in the course of his cross-examination of Darin that the defendant Company's position was that the neighbour had "gifted" the irrigator to the Company, and accordingly the Company was entitled to retain it. (T1001, L1-8)
4. In Closing Submissions, paragraph 789, Mr O'Haire referred to the evidence of joint venture employee Mr Rowe, who, asked about a "travelling irrigator", said:

"I think I remember helping Craig fix it up but I don't really remember much about it. I think it came from a family friend, that it was unusable, but yes, my memory is not that good to be able to remember everything about it. Yes, it's hard to know." (T2084, L6-12)

1. In the circumstances, I accept the evidence of Mr Rowe as a relatively neutral witness (though he did describe Craig as "my mate" (T2085, L16-17)). It follows that the irrigator required extensive work to render it operative. It is therefore credible that it might have been gifted to the Company by the neighbour. The claim relative to the irrigator therefore fails.
2. The next item for consideration is a length of "irrigator poly" which, according to the plaintiffs, was provided by the partnership at the beginning of the joint venture, and ought to be returned at the end. Darin described the item as a:

"2 inch poly with camlocks fittings on the end ... which I used ... as the irrigator walked across the paddock the poly would just come and follow it and go up and then you would put another section on with camlocks." (T1001, L21-26)

1. Darin said "it's about 100 metre lengths". (Ibid, L28-29)
2. During cross-examination, Mr O'Haire announced the defendant Company's position as being that it denied "there was irrigator poly there at the commencement of the joint venture and [says] that the partnership retained at least half of the irrigator poly that was left at the end of the joint venture." (T1002, L2-5) Darin said:

"It's not much good having an irrigator without some sort of poly to run the effluent or the water through before the start of the joint venture so, yes, it was there." (Ibid, L7-10)

1. In Closing Submissions, Mr O'Haire contended that the evidence did not establish that the poly pipe continued in existence as at the end of the joint venture. Since the irrigator which the poly pipe was required to serve was not in the venturers' possession at the outset of the joint venture, it cannot be assumed that the poly pipe existed or was in the possession of the partnership at the beginning of the joint venture. In this level of uncertainty, the claim for the poly pipe fails.
2. I turn next to the item "impact sockets". Mr O'Haire noted that Darin had said that he purchased a set of impact sockets at Kent's Hardware in Warrnambool before commencement of the joint venture (T265, L1-3), and that those sockets were not on his property, viz Farm 2, at the conclusion of the joint venture. (T297, L11-14) According to Mr O'Haire, Craig had said that the only impact sockets which he retained were his own, which he had purchased for his work as a mechanic. (T1499, L10 - T1500, L7) Mr O'Haire therefore contended that I should find that there was no obligation on the defendant Company relative to impact sockets. I accept that contention. The claim for the impact sockets fails.
3. Mr O'Haire (Closing Submissions, paragraphs 797, 800-803) referred to a series of items in the annexure, the claim for which had been abandoned: namely, the stainless steel pipe and channel; three truck ratchet tie downs; 4 in 1 intravenous minerals; a grey 600-litre poly trough; and a roll of 1-inch poly pipe.
4. I turn next to the item "fencing box and frame". Mr O'Haire (Closing Submissions, paragraphs 798-9) referred to the evidence of Darin that he left the fencing box and frame on Farm 1 when it was sold to the defendant Company. (T2004, L11-13) Darin agreed that Farm 1 was where most of the plant and equipment were stored, in a shed. (Ibid, L11-13) Inferentially, Darin said that the fencing box was:

"a box that I built many years ago when I started fencing contracting and it was like all the tools, the chainsaw, everything I stored in it on the back of the Land Cruiser." (T246, L17-20)

1. Darin did not contend that the box which he said the defendant Company was obliged to return contained those tools. (Ibid, L21-22) Darin said:

"It was located over at farm 1 and it wasn't returned." (Ibid, L26-27)

"It's just something that sat in the corner of the shed. It's never been used by the joint venture and it's never been used by me or the company."

1. He said he was happy to relinquish the box. (T1500, L14-21)
2. Given that the box was simply a container constructed for the purposes of a business that the joint venture did not engage in, viz fencing contracting, Craig's account is plausible. Darin said nothing to contradict it. The plaintiffs are entitled to an order for delivery up of this box should they require it.
3. A further item claimed under the annexure was a "multimeter". This claim was abandoned. (T1004, L23 - T1005, L2)
4. The next item which was pressed was three steel RHS plus half-drum feed troughs (blue). Mr O'Haire (Closing Submissions, paragraph 804) referred to the evidence of Darin that he constructed these items prior to the joint venture and they were of various ages. Darin said that at the commencement of the joint venture these items were "Not very old. Some I had only just made." (T248, L11) He said they could last "Something like 15 years, probably. Depending if you put them in with cows they get trashed pretty quickly." (Ibid, L10-15) Darin said these feed troughs were kept on Farm 1 and not returned to him. (Ibid, L16-19) Darin denied that these items were reduced to scrap metal. (Ibid, L21-22) He said they should have "Two, three, four, five, six" extra years of life. He concluded, "Who knows?" (Ibid, L23-26)
5. Given that these items were used to feed stock, and the predominant stock on a dairy farm are cows, the thought that these items had been reduced to scrap metal by those cows seems plausible. I asked Darin if it were possible that these items had been "trashed" by 2018; viz, the conclusion of the joint venture. He replied:

"It could be, your Honour, yes. As a matter of fact, I think there was probably one or two that were but of the six there was at least three or four that remained." (T249, L9-14)

1. Darin's son Jayden said that after 2016 these troughs which had been used to feed calves were scrapped in some cases and repaired in other cases. (T1261, L15-18) Pressed, Jayden said that he could not be sure that these items were still usable at the end of the joint venture. (Ibid, L20-22) Craig said of these items:

"I think we probably tried to use them for cows at one stage but we soon realised that cows destroyed them pretty quickly." (T1501, L6-9)

1. He said two or three of them were in a scrap heap, and "have been there since midway through the joint venture." (Ibid, L9-11)
2. Mr O'Haire therefore contended that there should be no order against the defendant Company relative to those troughs or drums. I accept that contention.
3. The next item from the annexure for consideration is described as "240V electric fence unit". Darin said that these items were "240 volt so they run off mains power, mains power units." (T247, L14-15) He said "it's a little bit of a shock factor if the cows try to go through them." (Ibid, L17-18) Darin said there were three of these items: "Two were on farm 1 and one was on my property." (Ibid, L20-21) He said these items could simply be unplugged. (Ibid, L22) An invoice for the purchase of this item shows it was acquired in 2010. (CB 923)
4. Mr O'Haire contended that this item was installed on Farm 1 when the defendant purchased it. As part of the fencing system, it should be regarded as having been affixed for the purposes of improving the realty rather than merely for its better use as a chattel. I accept that contention. If I were wrong, and it is properly to be characterised as merely a chattel, it is part of that class of item which, in my view, would, if left on a farm or residential property, be regarded as passing with the title in the same way, for instance, as a garden hose or a few gardening implements might. This claim fails.
5. Mr O'Haire noted (Closing Submissions, paragraph 811) that the claim for 20 galvanised steel droppers had been abandoned during trial. (T1008, L8 - T1009, L10)
6. Mr O'Haire said that a claim for 20 pigtail posts was abandoned during trial. He referred to the same passage of transcript as for the galvanised steel droppers.
7. As to a claim for a Projecta 620 battery charger, Darin said he had two battery chargers: "The first one ceased to operate and I bought a new one." (T261, L16-17) Darin said that at the end of the joint venture, "when I had to charge a battery I went to the cupboard where it [the charger] lives and it wasn't there ... and that was the last we ever saw of it." (T1009, L19-21) Craig denied that his Company retained the charger. (T1501, L23-26) He said, however, that "during the course of the joint venture we went through maybe two to three battery chargers". (Ibid, L29-31) He said the latest battery charger was "left on Farm 2 at the end of the joint venture". (T1502, L8-9) I accept Craig's account. Accordingly, the claim for the battery charger fails.
8. The next item is a claim for an "ATV lift jack". Darin described it as "a hydraulic jack" which he "used to have under my motorbike so you could pump it up and you could do work on it, whatever. It just lifted an ATV off the ground by about that much (indicates)." (T253, L26-30) He said this jack was "stored on farm 2". (T254, L2-3) Whilst this jack was on Farm 2 at the end of the joint venture, he said "it's now no longer there". (Ibid, L6-8) Asked about this, Craig said "There was no such item." (T1502, L20) He did say, however, that he recalled "a motorbike lift jack that Darin used for his two-wheel Suzuki motorbike". (Ibid, L14-16) He denied that the Company retained any such item. (Ibid, L28-30)
9. I accept Craig's evidence. The claim for the ATV jack fails.
10. Another item sought was described as "shed walls". These were walls removed from the calf shed on Farm 2 around 2014. (T1010, L28-31) Darin said that the walls were removed "in 2014". (T1010, L30-31) He said he did not recall a consultation in which a veterinary surgeon advised that the walls should be removed. (T1011, L1-2) Darin said that the walls, following removal, were not left on Farm 2, but rather were employed on Farm 1 as a "chook house" (T1012, L18-26) Craig agreed that there was a "chook shed" on his farm. He said:

"It's an old shed that was near our old dairy. It's an actual shed, four walls, a roof. We picked it up when we were building our new dairy. We just picked up the old shed with the tractor and we moved it to a different location and that became our chook shed." (T1504, L7-14)

1. He said that shed had "been there since long before we moved to [Farm 1] in 2009". (Ibid, L15-17)
2. I accept Craig's evidence as to the "chook shed". The claim for the missing walls therefore fails.
3. The next several items in the annexure, namely Items 27 to 36, were, as I understand it, abandoned in the course of the trial.
4. Item 37 was one bag of fulvic acid. This has already been dealt with in Annexure H. Mr O'Haire repeated his well-based contention that there was no contractual obligation alleged in the Statement of Claim which would require the reinstatement of consumables used by the joint venture during its term. For the reasons previously given, I reject any contention that such an obligation arises on the basis that the very consumption of the consumable constituted a breach of a fiduciary obligation by the Company.
5. The final item on the annexure is described as "Spare 2 horsepower Davey pump". Mr O'Haire said (Closing Submissions, paragraph 827), "None of the Partnership witnesses gave any evidence in respect of this item." He said Craig's evidence was that he "did not retain" this item at the end of the joint venture. (T1504, L30 - T1505, L9) This claim therefore fails.

1. According to paragraph 5 of the Statement of Claim, the relevant terms of the joint venture agreement included the following:

"d. at the cessation of the joint venture, the condition of each of Farm 2, Out Paddock 1 and Out Paddock 2 would be no less than at the commencement of the joint venture". (CB 29-30)

1. The defendant Company denied the existence of this term. This was amongst some twelve joint venture terms alleged in paragraph 5 of the Statement of Claim. The particulars stated that these terms were "partly express and partly implied", and:

"In so far as the terms were implied, the terms were implied to give business efficacy and/or were obvious terms." (CB 31)

1. I am unaware of any evidence that either brother made any express statement at or before the formation of the joint venture to the effect of this alleged term. Its existence therefore depends upon implication based on the term being required to give business efficacy to the joint venture or being "obvious".
2. At paragraphs 519-525 of her Closing Submissions, Ms Harris alleged - uncontroversially, I think - that at the commencement of the joint venture the two farms, Out Paddock 1 and Out Paddock 2 (which had just come on stream), were well conducted and in good condition. She referred to a favourable assessment of these farming operations in an internal Rabobank memorandum authorised by then relationship manager Mr Nick Sinclair. (CB 637-8)
3. At paragraph 524 of her Closing Submissions she said the "no worse off" term was breached by the defendant Company in two respects:

"(a) overgrazing of Farm 2 whilst Farm 1 was shut up to maximise its harvest; and

(b) application of muck and effluent to Farm 1 to the exclusion of Farm 2."

1. As to the term which governed the legal relationship where the contract is not wholly in writing, Mr O'Haire referred me to the recent decision of the High Court of Australia in Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 277 CLR 115. The dispute before the Court concerned the use by a website operator of photographs and floorplans of property, commissioned pursuant to an informal contract with a photographer, after completion of the sale or lease of the relevant properties. The photographer claimed that this use was in breach of contract and breach of copyright. The Court set aside a decision in favour of the photographer by the Full Federal Court. Mr O'Haire relied upon a dictum from Kiefel CJ and Gageler J (as he then was) as follows:

"In a case such as this where the terms of an agreement between the parties have not been articulated, those terms must be ascertained by reference to the parties' words and conduct. The words and conduct of each party must be understood by reference to what the words and conduct would have led a reasonable person in the position of the other party to believe. The ultimate question is what reasonable people with knowledge of the background circumstances then known to both parties would be taken by their words and conduct to have agreed." ((2022) [2022] HCA 39; 277 CLR 115, 126 [15])

1. The test for implication of terms to give business efficacy where the express terms of the contract are wholly in writing has for many years been regarded as stated by the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283, to the effect that for a term to be implied on this basis:

(a) The implication must be reasonable and equitable;

(b) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

(c) it must be so obvious that "it goes without saying";

(d) it must be capable of clear expression; and

(e) it must not contradict any express terms of the contract.

1. Amongst the questions for the High Court in Hardingham's case was the extent to which this formulation is applicable where the contract is not wholly in writing or, as in Hardingham's case, not in writing at all. Edelman and Steward JJ in their joint judgment in Hardingham's case said:

"It is extremely well established that the first step in determining the terms of a contract and their meaning, whether formal or informal, is to identify the express terms and to ascertain their meaning. In Byrne v Australian Airlines Ltd, McHugh and Gummow JJ described the "first task" to be undertaken in respect of contracts where "the parties have not spelled out all the terms of their contract [in words]" as being a task "to consider the evidence and find the relevant express terms". These remarks of McHugh and Gummow JJ have been quoted or referred to in Australia with approval on many, many occasions. In Roxborough v Rothmans of Pall Mall Australia Ltd, Gummow J recognised that as part of the first task of identifying the express terms, and ascertaining their meaning, the express terms might be "deduced or inferred objectively from the documents" where there had been a course of dealing between the parties." ((2022) [2022] HCA 39; 277 CLR 115, 153 [107])

1. As to the BP Refinery (Westernport) formulation, their Honours said at [116]:

"These principles apply to informal, or partly informal, contracts just as they apply to formal contracts. The flexibility of the five criteria, and their nature as guidelines to the ultimate question, can be particularly evident in the instance of an informal contract which contains very little expressed in writing by the parties. Many of the terms of such a contract must go without saying since few have been said. There is no need for the implied terms to be as obvious or as clearly expressed as express terms because few of the other terms are expressed at all. And the implied terms will not be likely to contradict an express term of the contract since few terms have been expressed." ((2022) [2022] HCA 39; 277 CLR 115, 156 [116])

1. This statement of principle appears to be the authoritative guide for the present circumstances, subject to the consideration that in this instance a number of the terms of the joint venture are in writing and contained in the Farming Agreement. Mr O'Haire said (Closing Submissions, paragraph 15), "A term will not be implied into an informal contract if it would operate in a partisan fashion", referring to Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 442, per McHugh and Gummow JJ.
2. Mr O'Haire contended that the "no worse off" obligation ought not to be regarded as part of the joint venture agreement: first because, he said, it was "asymmetrical", applying, as alleged, to the plaintiffs' property, namely the two out paddocks and Farm 2, but not to Farm 1 (Closing Submissions, paragraph 204). He said that it was vague and did not impose obligations on either of the joint venture parties and was therefore inappropriate for implication (Closing Submissions, paragraphs 205-206). Fourthly, he said (Closing Submissions, paragraph 207) that the alleged term was unsupported by evidence. He said there was no evidence of a condition survey of the properties at the commencement of the joint venture, nor any discussion as to condition at the end.
3. Presumably in support of the existence of the "no worse off" term in the joint venture, Ms Harris cross-examined Craig, asking:

"It was pretty obvious that the condition of the property would need to be maintained to maintain a good income?---Yes.

To the extent that milk prices allowed a good income?---Yes.

That went without saying, when you were having discussions about the terms of the joint venture, because it was just obvious?---Yes. There were no discussions." (T1733, L8-17)

1. There was no evidence placed before me as to what the usual terms of farm leases or share-farming agreements might be as to this "no worse off" provision. Granted that being "obvious" is part of the BP Refinery (Westernport) formulation, it would be altogether too liberal to suggest that what might seem to be an "obvious" term of an arrangement for that reason ought to be implied in such an arrangement. So, if a landlord let a commercial or rural property to a tenant based on word of mouth or a one-page letter, in one sense it might be obvious that the landlord's interests would only be properly protected if he signed up a tenant upon some well-regarded standard form of lease: for instance, one published by the Law Institute. This in itself, however, would not mean that the landlord could treat as implied in his favour every boilerplate covenant to be found, for instance, in the Law Institute's standard form. Again, someone who lent money to a small company and obtained a manuscript one-page form of guarantee could not expect to have all the boilerplate that a bank's standard form guarantee might contain simply because it was obvious that this type of boilerplate was necessary to protect his interests as creditor. It was not contended that this "no worse off" obligation could be regarded as implied on the basis of some agricultural custom.
2. Another consideration pointing away from the implication of the "no worse off" term was, I think, implicit in Mr O'Haire's quoted contentions. This joint venture agreement was not a lease. It was not an arrangement whereby the partnership surrendered sole control of Farm 2 or the out paddocks to the defendant Company. Both venturers were obliged to contribute labour, whether it be employees or the brothers themselves. It may be inferred that the work done by Darin was limited by his back condition. Nevertheless, in one way or another both sides of the venture contributed labour. To the extent that either side had an interest in a particular part of the farm, it had at least some type of opportunity to "look out" for its territory.
3. In all these circumstances, I am not satisfied that the BP Refinery (Westernport) formulation is satisfied such that the "no worse off" term should be regarded as part of the joint venture agreement. If I were wrong, and the joint venture agreement did include the alleged "no worse off" obligation as an obligation owed by the defendant Company to the partnership, the evidence relied on to support the plaintiffs' allegation of breach is problematic.
4. I turn first to the allegation that the "no worse off" term was breached by the defendant Company by having the herd overgraze the partnership's Farm 2 to the exclusion of the defendant Company's Farm 1. Ms Harris (Closing Submissions, paragraph 528) referred to evidence given by Darin to the effect that in the period August to October 2018 paddocks on Farm 2 were "black, like mud" from pugging (viz, the rain-softened surface of the pasture being broken up by the cows' hooves). He attributed this to poor pasture management and failure to rotate the herd onto Farm 1. Pugging occurs when the stock are not rotated from one paddock to another, but repeatedly grazed on the same paddock. (T631, L25 - T632, L13)
5. In cross-examination, Mr O'Haire put it to Darin that if matters were as he described them in late winter and early spring 2018, the herd would have had no, or insufficient, food. Darin disagreed, saying that this was the time of year when grass was growing, and there was enough food on Farm 2. (T856, L6-12) Mr O'Haire observed "This was inconsistent with Darin's earlier evidence that the paddocks on Farm 2 were black, and effectively mud." (Closing Submissions, paragraph 848) Mr O'Haire said that Darin's evidence-in-chief was to the effect that the overgrazing of Farm 2 occurred in August 2018, but later in cross-examination (T845) he said the overgrazing extended over August, September and into October. Mr O'Haire also noted that Darin's son Jayden gave the following evidence on this subject. Towards the end of the joint venture he observed the herd grazing "on Farm 2 morning and night". (T1279, L22-26) Jayden agreed he observed the cows on Farm 2 in this period "an awful lot" but could not exclude the possibility that they also grazed on Farm 1. (T1280, L1-6)
6. Ms Harris (Closing Submissions, paragraphs 531-2) referred to evidence from the plaintiffs' witnesses to the effect that affected (overgrazed) paddocks on Farm 2 were rolled, harrowed, and resown. Mr O'Haire urged me to accept Craig's evidence that there was no departure from normal rotation practices at the end of the joint venture. (T1505, L17 - T1507, L3) Craig said his only modification of normal herd rotation practice was responsively to a request in the dairy diary (CB 1772) written by Darin on the page for Monday, 10 September 2018 (T1505, L17 - T1507, L10).
7. More generally, Mr O'Haire observed (Closing Submissions, paragraph 854) that the plaintiffs' evidence did not make a specific comparison between the state of the pasture on Farm 2 at the commencement of the joint venture as compared to its condition at the end. The amounts claimed for rectification of the alleged breach by way of resowing and power-harrowing were conceded to be annual expenses; viz, expenses that were incurred regularly each year, whether or not there had been any overgrazing. (T634, L9-11; T861, L24 - T862, L6; T862, L14-18; T859, L23-28) Mr O'Haire also commented upon the lack of photographic evidence as to the alleged poor state of paddocks on Farm 2 and the lack of contemporaneous records of the labour undertaken to carry out the work claimed to be required to rectify the breach.
8. A further alleged breach by the defendant Company of the alleged "no worse off" obligation was constituted by an alleged failure to fertilise Farm 2. Fertilisation of pasture is effected either from the herd's own excretions - effluent and muck - or chemical fertiliser. Ms Harris referred to evidence from Darin describing the mode of capture and use of the effluent and muck (Closing Submissions, paragraphs 537-539) The plaintiffs' case, as summarised at paragraph 539, alleged that 92 per cent of the effluent was spread on Farm 1, and 100 per cent of the muck was spread on paddocks on Farm 1, to the disadvantage of the paddocks on Farm 2.
9. Mr O'Haire (Closing Submissions, paragraphs 856-857) observed that as framed, the claim with respect to an alleged failure to fertilise was not linked to the "no worse off" obligation in the partnership agreement. To make out a claim under that term, he said (Closing Submissions, paragraph 857):

"there would need to be evidence, or an allegation, that the uneven application of fertiliser in fact caused the fertility of particular paddocks to be lower at the end of the JV than at the start. There was no such evidence led ..."

1. He referred to Craig's evidence that as to the application of fertiliser, he went along with what Darin said. According to Craig:

"There were discussions entered into each year of where we put the effluent and muck but there was never any complaint by Darrin [sic]. We discussed paddocks that weren't performing so well in grass growth and that's where we applied the effluent. ... Never a complaint until these proceedings ... Darrin [sic] was the fertiliser expert so I pretty much just went along with what he said." (T1647, L16-27)

1. Mr O'Haire also observed (Closing Submissions, paragraph 861) that the costs claimed for rectifying the breach, or alleged breach, constituted the costs of spreading effluent and muck on Farm 2 in 2019 and 2021, whilst Darin conceded that these processes had to be undertaken on the farm annually in any event. In cross-examination, Mr O'Haire asked Darin:

"Your evidence was that the spreading of muck and effluent is an annual expense, something done every year. Do you remember giving that evidence?"

"Every year. As long as they can get there and do it, yes." (T842, L22-25)

1. Mr O'Haire then put it to Darin that these are expenses that would have been incurred in any event, and he replied:

"Yes. The disposal of them and spreading, is that what you are saying?" (T843, L1-4)

1. I put it to Darin that the spreading of muck and effluent was a necessary annual process because, independently of fertilisation issues, the effluent and muck needs to be dispersed and therefore disposed of, to which he agreed. (T843, L19-20)
2. Given my preference for the evidence of Craig over Darin, I reject the allegation that there was an unfair distribution of effluent and muck during the joint venture effected by Craig in defiance of the wishes of Darin. In any event, the costs of spreading effluent and muck, being annual expenses, could not be regarded as caused by any breach as to these matters, if indeed there were a breach.
3. The next item in the annexure is described as a "Lely spreader". This item was used to spread fertiliser. (T577, L24-26)
4. The plaintiffs' claim was for the cost of replacement of the item as evidenced by an invoice from machinery dealer dated 7 June 2019. (T578, L5-8, CB 1176)
5. Darin said the partnership bought the original spreader "in 2001 ... possibly a little bit later". (Ibid, L12-14) The plaintiffs sought recovery of 50 per cent of the price. (Ibid, L16)
6. The plaintiffs' case therefore was that the defendant Company should pay its full half share of the cost of replacement. Darin said "Because it [the spreader] wasn't washed and oiled satisfactorily or at all at the end of the joint venture and it rotted out". (Ibid, L28-30)
7. Darin rejected my suggestion that the item had given good service and simply wore out. He said "The demise was corrosion which is avoidable. If you treat fertiliser spreaders properly you can avoid corrosion". (T579, L4-6) He said he did not know how many more years the spreader could have functioned, "It was a very good quality spreader and it had given great service but". (Ibid, L10-11)
8. Darin said that proper maintenance entailed washing down "and when dry you apply just waste oil to it via a little spray gun ... and that prevents any corrosion taking place. (T201, L3-6)
9. Darin said that the item was being used in the last few months of the joint venture by his brother, Craig. (Ibid, L12-13) He said "if you don't attend to washing it and oiling it after spreads the corrosion takes place quickly". (Ibid, L17-19)
10. In cross-examination, Darin admitted that he had recovered the fertiliser for the partnership's exclusive use in or about August, or perhaps September, 2018. (T952, L12-21) Daren said "I took it back and used it and all of the spreading mechanism flew apart on it [thereafter it was] inoperable". (T953, L2-6)
11. I put to Darin that this incident which he described as an "implosion" (T950, L12) took place between August and 31 October 2018, and not for instance in October or December 2015. I observed he was speaking of a fairly narrow window. Darin was emphatic: "No it happened beforehand" [viz before 31 October 2018]. He agreed there was no contemporary evidence as to the date of the occurrence.
12. It will be seen that Darin's evidence under cross-examination departed significantly from the evidence he had given in-chief. In-chief, there was no reference to the "implosion". Moreover, his evidence was calculated to give the impression that his brother, Craig, was in control of the spreader in the final months of the joint venture, which is the opposite of what he said in cross-examination.
13. Mr O'Haire noted that asked how, from sometime before 31 October 2018 until June 2019, the partnership got along without the spreader. Darin said in cross-examination that they relied on third parties or used the bike spreaders. (T954, L3−5)
14. Mr O'Haire observed that this was inconsistent with other evidence given by Darin about use of the bike spreader where he said between November 2018 and August 2021, because of wet winters, the bike spreader was not required and therefore not used. (T962, L29 - T963, L5)
15. Mr O'Haire referred to Darin's evidence where when Mr O'Haire put to him that he did "most of the fertiliser spreading during the joint venture", he replied "I did probably 50 or 60 per cent of that, the granular spreading but I did nearly ... 100 per cent, maybe not quite 100 per cent of the foliar fertilising". (T951, L2-7)
16. Mr O'Haire urged me to accept Craig's evidence that he watched the fertiliser and applied oil to stop corrosion, (T1936, L9-13) and that it was still usable the last time he, Criag, saw it. (T1451, L6-18)
17. As previously indicated, I generally prefer the evidence of Craig. In this instance, the point is reinforced by the inconsistency of Darin's evidence-in-chief with his evidence under cross-examination.
18. Ms Harris made no particular submission relative to this item. (Closing Submissions, [480])
19. I reject the contention that the defendant Company shortened the life of this item by misuse.
20. If the pleaded terms as to the sharing of the cost of replacement of plant and equipment used in the joint venture is to be regarded as extending beyond the date of termination of the joint venture, I would reject the existence of any such term for the same reasons as I rejected the implication of any term for repair of joint venture plant and equipment after the end of the joint venture. The claim relative to this item, however characterised, fails.
21. The next item in the annexure is described as a "tedder" tractor. Ms Harris said (Closing Submissions, [482]), "this item has not yet been replaced".
22. Darin explained that a tedder is "... rotary arms". He said:

"when you cut the hay with the mower and it lays it down and in the process of what we call wilting the silage, you run a tedder through it. So a tedder flicks it around and what it does is it wilts the stalk and by wilting a stalk you are sort of locking the sugars into the plant so it dries with the sugar locked in the plant to a point that you then turn it into silage. So it increases the drying process whilst maintaining the sugar in the plant." (T202, L16-26)

1. He said the tedder was used only at harvest [viz October/November/December], mainly November. (Ibid, L27-29)
2. For the rest of the time, according to Darin, the unit was stored on farm 1. Daren said:

"I always greased and oiled everything at the end of the season, the end of the hay season and silage season and then prior to as well. So everything was packed with grease beforehand and repacked when it's prior to use." (T203, L17-21)

1. There was no explanation as to why a replacement was required much less why, if the need for replacement was somehow linked to the joint venture, it had not occurred fully six years after the joint venture concluded.
2. Ms Harris, aside from drawing attention to Darin's evidence, advanced no argument relative to this item.
3. The claim for the tedder fails.
4. The next item in the annexure is the cattle trailer, which was provided to the joint venture by the partnership.
5. Darin said the item was returned to the partnership "Just prior to the end of the joint venture" and it was "Well and truly rusted. Holes in it". (T203, L26-29) He agreed that cattle being carted in the trailer foul it with urine and manure, which is acidic and would tend to corrode the metal structure, hence the need to wash them out and keep them clean. Moreover, cleaning avoids slippery surfaces. (T203, L30 - T204, L7)
6. Darin identified a photograph of the trailer at Court Book 1200. I asked "Am I right in saying that the corrosion you speak of isn't especially visible there? Perhaps on the mudguard ... on the right-hand edge." Darin said "The floor was rusted out in spots and underneath the framework was rusted as well". (T204, L17-29)
7. Regrettably the photograph did not demonstrate the "rusting out". Darin said that this trailer was "well and truly beyond repair". (T205, L1)
8. Mr O'Haire (Closing Submissions, [557]) drew attention to Craig's evidence to the effect that the trailer was maintained and washed during the joint venture, (T1453, L27 - T1454, 3) was usable albeit with fair wear and tear at the end of the joint venture. (T1453, L1-5) The floor was not rusted through as alleged. (T1453, L13-18)
9. As previously noted, I reject the existence of a term requiring replacement of items of plant and equipment after the end of the joint venture. In any event, since I generally accept the evidence of Craig in preference to that of Darin, I do not accept that the floor of the trailer was rusted out or rusted out to such a degree that the trailer was inoperative. Had that been the case, one would have expected Darin to have taken a photograph demonstrating this fact.
10. The claim for this item fails.
11. The next item is a wood splitter. According to Ms Harris (Closing Submissions, [484], "The issue is whether this wood splitter was used for domestic purposes or the joint venture". She referred to Darin's evidence relative to this item.
12. Darin said that he purchased the wood splitter in 2011 and it was used by the plaintiff partnership until 2013. As to the defendant Company, Darin said "They used it to cut their firewood. They had it on their property at farm 1 and used it to cut their firewood".
13. The partnership ceased using the wood splitter in 2013 because Darin said he and his wife "moved to Scotts Creek and we did not have a wood fire". (T206, L24-31)
14. Darin said "We picked it up just before the cessation of the joint venture". (T207, L3-4)
15. The plaintiffs claim for the cost of replacement:

"Because it was left in the open and the ram rusted. So the ram moves in and out of the cylinder and the ram was all rusted. There was no pull start on the stationary engine." (Ibid, L7-10)

1. He said it should have been kept in a shed or otherwise under cover. (Ibid, L14-15)
2. Mr O'Haire said that the wood splitter had been left on farm 2 and was used by Lachlan Jones after he moved into the house on farm 2. Darin agreed with this in cross-examination, saying "He did use it but very rarely". (T960, L11)
3. Darin agreed he reached this conclusion because he believed that Lachlan Jones "was using electricity like it was going out of style and therefore he couldn't have been using the wood fire". (Ibid, L19-23)
4. Mr O'Haire relied on the evidence of Craig that the splitter was still operating at the end of the joint venture, (T1456, L18-20) and that he was splitting wood with it.
5. If Ms Harris' observation as to this item is that the claim for it must fail were I to find that the use to which the item was put was domestic rather than part of the business of the joint venture, the evidence is clear that the wood splitter was used to split wood for use in the wood heater in the house on farm 2, whether Mr Jones made liberal or only limited use of it.
6. There was no evidence that the item has in fact been replaced. I prefer the evidence of Craig. This item fails on the facts.
7. In any event, as I have previously indicated, I reject the existence of any term obliging the defendant, as joint venturer, to contribute to the replacement of plant and equipment occurring after the end of the joint venture.
8. The penultimate item for consideration under Annexure E is described as "motorbike spreader" [viz a piece of plant whereby fertiliser may be spread from a motorbike].
9. Ms Harris (Closing Submissions, [485]) said:

"This motorbike was used to spread fertilizer [sic] which is corrosive if not properly washed after each time of use. Darin says Craig didn't wash it down properly and Craig says he did. It is an oath-on-oath dispute."

1. Darin told Mr O'Haire during cross-examination in answer to the question:

"Can I take ... your evidence that you have just given that this is just a replacement claim and not a claim based on a failure to maintain or repair?" "Yes. You could call it a bit of damage there but just a replacement will do". (T962, L19-23; L29)

1. The item was replaced in August 2021.
2. As an "oath against oath" issue, I would determine it in favour of Craig. The claim for this item fails.
3. The final item in this annexure is described as a "Honda ATV motorbike". Mr O'Haire noted that this motorbike was purchased by the partnership in 2009 and was therefore nine years old at the end of the joint venture. (T209, L8-9)
4. Mr O'Haire said (Closing Submissions, [578]):

"It was used as the primary bike for the JV until 2015, when the [defendant] Company supplied a bike to the JV at its own cost. After that, it continued to be used for various "heavy duty" tasks on the farm, including towing the fertiliser spreader and the calf trailer.

1. Mr O'Haire noted (Closing Submissions, [580]):

"Darin's evidence was that the motorbike was never serviced, and used for spreading and not cleaned, so that there was lots of corrosion on it, and that it was damaged from having been used to ram stock."

1. Annexure E states that it was "Returned unrepairable due to misuse" at [Closing Submissions, [580].
2. Mr O'Haire referred to a number of elements of Craig's evidence:

(b) the replacement motorbike was purchased by the Company in 2014 because this bike had worn out; and

(c) notwithstanding this, the bike was still working at the end of the JV;

(d) he could not say from his own knowledge that the bike was never serviced; the Partnership's allegation to that effect is based on Craig having told Dairn that in 2016 or 2017;

(e) before Craig said that to him, Darin thought the bike was being serviced;

(f) the JV records include entries relating to motorbike repair in the period prior to the Company replacing the bike." (Closing Submissions, [581])

1. Mr O'Haire relied on evidence from Adam Rowe. Mr Rowe said that he had known both brothers since about 1988, and had been a family friend for a long time. He and Craig did their apprenticeships [presumably as mechanics] at the same time in Melbourne in the early 1990s. (T2078, L15-21)
2. According to Mr Rowe:

"the Honda was the main farm bike and Craig used to bring it over to my place occasionally. We used to service it. I remember doing the ball joints and CV joints on it once. I don't really remember much after that. With the bike, the first gear was a fault on it I know for sure because I think it lost first gear at one stage and they still rode it. But, yes, I haven't seen the bike since." (T2083, L6-13)

1. He said he last saw this Honda bike "Probably eight years ago". (Ibid, L15)
2. Mr Rowe disagreed with the statement that the bike was never serviced:

"because I helped Craig service it at least once, because I used to service my bike and I said to Craig, 'You should bring it over one night. We will have a few beers and give it a bit of a birthday'. So it's at least been serviced once that I know of. I think it went to Mark Benton Farm Machinery for other repairs maybe a year after we worked on it. I can't really remember, it was a long time ago." (Ibid, L21-29)

1. Mr O'Haire said (Closing Submissions, [585]):

"The fact that it was still working nine years after it was purchased, when the [plaintiff] Partnership has been through two replacement motorbikes in the seven years since the end of the JV, supports a finding that it was well maintained and serviced by the Company during the JV."

1. Mr Rowe was not an entirely independent witness. He seems to have been Craig's friend rather than Darin's. Considering his evidence, along with Craig's, which I have generally preferred, I reject the claim that the Honda "ATV" wore out because of misuse. Again, I do not accept that there was an obligation on the defendant Company to meet or contribute with replacement costs for plant and equipment after the end of the joint venture. The claim for this item fails.

1. The plaintiffs made a claim against Craig personally rather than the defendant Company with respect to the Honda "ATV" motorbike already referred to. (Statement of Claim, [83]-[88]) The claim is for 78 per cent of the replacement cost of the bicycle, $14,110 [viz $11,005.80]. (CB 62) The calculation of the 78 per cent represented the view that Craig was in possession of the all-terrain vehicle seven of its nine years of life.
2. According to paragraph 84 of the Statement of Claim:

"Darin for the Partnership, entrusted Craig with the Motorbike for the purpose of general farming duties e.g., Travelling to bring the cows back to the dairy, collecting calves in the paddock." (CB 61)

1. According to paragraph 85 of the Statement of Claim, it was an implied condition:

"of being entrusted with the Motorbike, that ... Craig would:

b. return the Motorbike in sound mechanical order." (Ibid)

1. These obligations, it said, were breached because when the motorbike was returned it was "irreparable". (CB 61, Statement of Claim [87])
2. This claim was dealt with by Ms Harris in paragraphs 564-578 of her Closing Submissions. She traversed in those paragraphs the same basic evidence as being summarised and referred to relative to this item as regards the claim relative to it made in Annexure E.
3. Mr O'Haire (Closing Submissions, [882]-[884]) contended that this claim was inconsistent with the claim mounted under Annexure E, which proceeded upon the basis that there had been an entrustment of the motorbike to Craig as an individual rather than to the defendant Company.
4. I did not read Ms Harris' treatment of the issue in her Closing Submissions as dealing with this actual or alleged inconsistency. Aside from reviewing the evidence, she complained that certain of Craig's evidence was not put to Darin in cross-examination and thereby offended the rule in Browne v Dunn (1893) 6 R 67_._ (Closing Submissions, [574])
5. She said, at paragraphs 573-5, that the evidence of Craig that the motorbike was not worth repairing given that it would cost $3,000-$4,000 was objectionable as hearsay, without the maker of the statement having been called, and offensive to the rules as to expert evidence.
6. It is not obvious why, as regards the Honda motorbike regarded as partnership, plant and equipment, it is said to have been entrusted to Craig as an individual rather than entrusted to the defendant Company.
7. Neither counsel posited any standard of care which the law would imply in a bailment such as the one alleged in the plaintiffs' Statement of Claim. The standard of care, according to the Statement of Claim, was to "maintain the Motorbike in good working order". There was no explanation as to whether this was a duty implied by the law of bailor and bailee on the one hand, or under the law of contract on the other - save to say that it was not contended that Craig as an individual was a party to the joint venture agreement.
8. The complexity of the law of bailment is testified to by the size of the standard work on the subject, Palmer on Bailment. This edition exceeds 2,000 pages of text. According to the learned editors [1-048]:

"The majority of reported cases on bailment concern actions by the bailor against the bailee for breach of the bailee's duty to take proper care of the goods. Actions of this kind differ from ordinary actions in negligence in several respects." (Page 48)

1. No authority was cited which, in the circumstances, would have independently of contract imposed a duty of care higher than the one merely to take reasonable care [viz to maintain in good working order].
2. In all these circumstances, the bailment claim mounted against Craig individually fails. The evidence does not satisfy me that the deterioration of the motorbike went beyond fair wear and tear.

1. Paragraphs 89-95 of the plaintiffs' Statement of Claim constitute a claim for damages "for failure to take proper care of the Monaro and/or failure to maintain in sound mechanical order". According to paragraph 89, Darin is the owner of a Holden Monaro registration number LLO 421. In the circumstances, it seems unlikely that this registration is current. According to paragraph 90:

"On or about December 2009, Darin as bailor, entrusted Craig as a voluntary bailee, to store the Monaro on Farm 1 so the joint venture could utilize all the storage capacity on Farm 2 for farming purposes." (CB 62)

"It was an implied condition of being entrusted with the Monaro, that whilst the Monara [sic] was in Craig's possession, care or custody, Craig would:

1. a. return the Monaro to Darin when requested by Darin;
2. b. take proper care of the Monaro by adequately garaging it;
3. c. maintain the Monara [sic] in the same good order and condition during the bailment." (Ibid)

1. According to paragraph 92 of the Statement of Claim, despite demands for redelivery of the vehicle in the period 5 December 2018 to 14 September 2021, Craig refused to redeliver the vehicle.
2. Paragraph 93 of the Statement of Claim complained that Craig failed to take proper care of the Monaro by removing it from the garage and exposing it to the elements in open paddocks, by reason of which its condition has deteriorated and the restoration costs "will have increased", and Darin "has been deprived of the use of the Monaro".
3. In paragraphs 579-584, Ms Harris elaborated upon these matters in Closing Submissions, fundamentally repeating the material allegations in the relevant paragraphs of the plaintiffs' Statement of Claim.
4. Once again, this is a claim mounted against Craig personally not against the defendant Company.
5. Insofar as the Monaro was placed in a shed on farm 1, since Craig was the registered owner thereof at material times (CB 609), it might perhaps be said that placing the Monaro in that location constituted an entrustment of it to Craig. On the other hand, the joint venture constituted by the defendant Company and Darin and Sally's partnership could be regarded as the occupiers of that land and therefore, at least during the joint venture, the possessors of the Monaro. Perhaps that distinction is immaterial given that the complaints made as to the treatment of the Monaro pertain to occurrences after the joint venture.
6. The vehicle is depicted in photographs at 1919-1923 of the Court Book. The photograph at 1922 of the Court Book apparently depicts the Monaro in mid to late 2018. Whilst I am conscious that the present trial is for the determination of liability as to this item rather than quantum, I should say immediately that, in my view, the item in question is properly characterised as a wreck, having regard to the state it was in, in mid-2018 - that is before Craig's alleged wrongdoing relative to it, I cannot think that it was possessed of any economic value.
7. Perhaps almost nothing is beyond restoration if enough time and trouble is taken over it. If, however, any economic value were to be ascribed to the number of hours that would be required to restore the vehicle, it is far from clear that any sale price would recover that economic value. Had the brothers not fallen into the bitter dispute that has brought them before the court, I believe this object would have been left to continue to deteriorate and be treated as an item of no value.
8. The Statement of Claim characterised Craig as being a "voluntary bailee" of the Monaro. (CB 62, [90])
9. In Palmer on Bailment (3rd ed, page 2186), the index under the heading "Classification of Bailments" does not mention voluntary bailments, whilst it does refer to "involuntary bailment".
10. The traditional classification of types of bailment was made by Holt CJ in Coggs v Bernard [1790] EngR 371; (1703) 2 Ld Raym 909, 912-3; [1790] EngR 371; 92 ER 107, 110, "The first sort of bailment is a bare naked bailment of goods delivered by one man to another to keep for the use of the bailor; and this I call a depositum". (See Palmer, op cit 181)
11. The learned editors of Palmer suggest a fourfold classification:

"1. Gratuitous bailment for the bailor's sole benefit;

1. 2. Gratuitous bailments for the bailee's sole benefit;
2. 3. Bailments for mutual benefit;
3. 4. Bailments to which the law, for reasons of policy, attaches exceptional obligations." (Palmer, op cit 184)
4. One might see the bailments here in question as either of the first "bare" class of bailments referred to by Holt CJ, or as a bailment for mutual benefit, according to Palmer's classification.
5. If the bailment is regarded as falling within the first classification by Holt CJ mainly as "depositum", according to Palmer, in England and Canada the liability of a bailee is to exercise reasonable care. The editors continue:

"In Australia, there is a marked dearth of modern appellate authority and it may still in theory, be arguable that the depositary is liable only for gross neglect. Indeed, one old decision seems almost to deny that he owes any duty at all, at least where the bailment occurs at the request of the depositor; but the case (which was one of mandatum rather than depositum) can be explained on the ground that there was no satisfactory evidence of neglect. The remaining decisions seemed to fall into three main categories:

(1) those where the standard applied is that of gross neglect, but the court has equated this with the degree of care that a reasonable and prudent person of similar character would have taken in similar circumstances;

(2) those where the standard is that of gross neglect and there is no such qualifying metaphor;

(3) those where the standard is that of reasonable care."

1. Mr O'Haire contended that the evidence did not support the pleaded cause of action. (Closing Submissions, [873]) He said that no storage capacity on farm 2 was "freed up" by storing the Monaro on farm 1. He said Darin's evidence was that it was left on farm 1 because there was "nowhere to store it on farm 2", and that "There wasn't a lot of storage on farm 2". (T301, L21-22)
2. At Transcript 301, I asked Darin how long it was since the Monaro had been driven and he replied "'93". He agreed with me therefore that by 2018 this vehicle had been defunct for 15 years. He referred to another vehicle that he had in a shed for 20 years which was "still in pretty good nick", though not a Monaro. (T301, L5-10) Darin denied that the vehicle was simply abandoned as a wreck. (Ibid, L11-18)
3. As Mr O'Haire observed, according to Darin when he sold farm 2 he did not recover and remove the Monaro wreck:

"Because we had nowhere to store it on farm 2, your Honour. There wasn't a lot of storage on farm 2, but I didn't know that actually - actually, in hindsight, had I known that I would have removed it, after ... what's happened to it." (Ibid, L20-25)

1. He agreed a bystander might assume that the car had simply been abandoned. (Ibid, L26-30)
2. In light of this evidence, I would classify Craig's responsibility as amounting to no more than the taking of reasonable care and perhaps a duty as meagre as one merely to avoid gross neglect. The evidence quoted from Darin excludes, I think, the possibility that the bailment was one for mutual benefit, as the allegations in the Statement of Claim might have led one to believe.
3. Mr O'Haire in Closing Submissions ([875(b)]) contended:

"Craig's evidence was that when he purchased Farm 1, the Monaro:

(i) was in an open fronted shed;

(ii) was basically scrap metal; it was rusted and dinted, with no motor, no gearbox, and missing most of the interior; and

(iii) it had no front end and no rear differential, both of which had been removed by Craig, with Darin's permission, in around 1995;"

1. He referred also to the evidence of Adam Rowe, which he summarised as follows:

"Adam Rowe gave similar evidence, to the effect that the Monaro was a "bin job" in very poor condition, in an open shed 10 kilometres from the ocean, with lots of rust and missing parts, including the front end, which he had helped Craig remove in around 1996." (Closing Submissions, [875(c)])

1. Mr O'Haire also noted an allegation of removal of parts by Craig, which he said was inconsistent with the evidence of both Craig and Adam Rowe. (Closing Submissions, [876(a) and (b)])
2. I accept Mr O'Haire's contention (Closing Submissions [876]) that the evidence did not establish that Craig had removed and retained the items referred to as particular to paragraph 95 of the Statement of Claim or any other item mentioned in the evidence. Any separate claim relative to those must fail.
3. The issue which presents itself therefore relative to the Monaro is whether the admitted moving of the car body from the open-fronted shed, where Darin was content for it to be left, to an open paddock constitutes a breach of duty by the depositary. In the case of a bare bailment, and I have determined that this was, were one to regard the car body as being a mere wreck, it would be neither gross neglect nor want of reasonable care to move it into the open air. Looking merely at the physical state of the item, I believe it could be regarded simply as a wreck. Did any of the events after the end of the joint venture create a context in which a different conclusion might be reached?
4. Craig said that he moved the Monaro out of the shed on farm 1 in February or March 2021. (T1517, L23-25) He said the Monaro was removed in September 2021. (Ibid, L12-13)
5. It is common ground that the return of this vehicle was demanded by the plaintiffs' solicitors by letter dated 20 August 2020. It was clear at that stage that whatever a bystander might think of the vehicle, Darin wished to recover it. In my view, against that background, to move the vehicle into the open air and leave it in the open air for some six months constituted a want of reasonable care or perhaps gross neglect.
6. It will be a matter for a further quantum trial to determine what damage, if any, the car body sustained in the six-month period. Conscious that this is not a matter for me to determine, my present inclination is to think that the wreck had no more than scrap metal value even before it was exposed to the elements. Therefore, its exposure was inherently incapable of diminishing its value.
7. As to the period when the Monaro remained in the open fronted shed, there was no want of reasonable care, much less gross neglect, in simply leaving the vehicle where its owner had seen fit to deposit it.
8. According to Darin's account, aside from inappropriate exposure of the Monaro to the elements, a number of significant components had been stripped out of the wreck, as he saw it, by his brother Craig. Craig denied having done this. All in all, the matter was left in such uncertainty that I am not satisfied of any removal or misappropriation of those items by Craig so as to leave him under any legal liability to Darin relative to those items.

1. Paragraph 18 of the plaintiffs' statement of claim alleged a breach of the joint venture agreement on the part of the defendant Company in failing "jointly [to] contribute to the upkeep of the infrastructure in Out Paddock 1 and Out Paddock 2" by not providing labour, not contributing 50 per cent of the expenses relative to "the upkeep of the infrastructure on Out Paddock 1 and Out Paddock 2", leaving "Farm 2" "worse off" in breach of the "No Worse Off" obligation. (CB 38)
2. As to Out Paddock 2, Ms Harris (Closing Submissions, paragraph 324) said:

"It is common ground that the local council had left gravel on the side of the road near Out Paddock 2 and told Darin he could use without charge. No claim is made for the gravel."

"Darin hired an excavator to construct a cattle track on Out Paddock 2 for the benefit of the JV. If liability is proven, the Partnership claims 50% of that cost. Quantum is for a subsequent hearing." (Closing Submissions, paragraph 324)

1. In the following paragraph she said that a gravel track was constructed on Farm 1 using gravel "that Darin already owned", and the plaintiff partnership was charged 50 per cent. She continued:

"Being like for like constructions, and both cattle tracks were used by the common dairy herd, properly characterized, it is a JV expense." (Closing Submissions, paragraph 326)

1. As I understand this contention, it is that since the plaintiff partnership paid 50 per cent of the cost of a cattle track on Farm 1, it is likewise entitled to 50 per cent of the cost of the cattle track on Out Paddock 2. She noted the defendant pleaded that this claim was statute-barred, but contended that "it is part of the taking of accounts for the JV".
2. Mr O'Haire referred to evidence from Darin where he admitted in cross-examination that this outlay was a capital expense. (T802, L4) He was taken to a document at CB 986, being a tax invoice for the sum of $4,658.50, dated 31 May 2015, the first three items of which seem to have pertained to Out Paddock 2. A manuscript note in the margin identified these three items as "Mine". Darin agreed that the manuscript was his handwriting. He denied that this was an acceptance on his part that this was a capital outlay for which the joint venture was not responsible. He said "I should have just written "Out-paddock 2"." (Ibid, L15-21) Since those three items are introduced by the words "Out Paddock", this explanation is difficult to accept. The balance of the items, six in number, are labelled in the margin once again in Darin's handwriting as "Farm".
3. In his Closing Submissions (paragraph 372), Mr O'Haire said, first, there was no pleaded claim for reimbursement by the Company of the plaintiff partnership's capital expenditure, nor, even if one accepted that there was an obligation resting upon the defendant Company to leave Farm 2 and the out paddocks "no worse off" (which I have not), the construction of the cattle path would be an improvement beyond the "no worse off" obligation if it existed. As regards the plaintiffs' contribution towards the cattle track on Farm 1, Mr O'Haire said:

(a) the Partnership reimbursed the Company for the relevant expense at the time, at the Company's request;

(b) neither the request for payment, nor the acceptance of payment, could properly be characterised as a "failure to contribute" to the relevant expense; and

(c) the relevant payment occurred in 2015, more than six years prior to the commencement of the proceedings in January 2022, and the claim is accordingly statute barred in accordance with s 5(1) of the Limitation of Actions Act 1958 (Vic)." (Closing Submissions, paragraph 373)

1. As I have previously observed, this is not a situation where accounts are being taken at the dissolution of a partnership. If the plaintiffs have made a payment or credit to the defendant Company to which the Company was not entitled, the plaintiffs' remedy would be in the law of restitution: for instance, that the money was paid under a mistake (there was no evidence or allegation of such a mistake), or a payment was made for which there had been a failure of consideration. In either event the cause of action would accrue at the time that the payment which it is sought to reverse was made. This claim was mounted in a proceeding commenced in 2022 and was therefore beyond the limitation period under the Limitation of Actions Act 1958. This claim therefore fails.

Failure to upkeep the infrastructure on Farm 1 and Farm 2

1. Paragraph 20 of the statement of claim alleged a breach by the defendant Company to make joint contribution to the upkeep of Farm 2 by not providing its unit of labour towards the upkeep of farming infrastructure, not contributing 50 per cent of the expenses incurred by the plaintiffs for the upkeep of the farming infrastructure on Farms 1 and 2, and leaving Farm 2 "worse off" in breach of the "no worse off" obligation. (CB 38-9) The details of the amounts claimed were said to be identified in Annexure D.
2. In so far as this claim is based on the "no worse off" obligation said to rest upon the defendant Company, since I have rejected the existence of any such obligation this element of the claim may be put to one side.
3. Ms Harris (Closing Submissions, paragraph 329) said:

"The JV terms included an obligation to maintain and repair and upkeep the infrastructure on Farm 1 and Farm 2. There was no express contractual term that such an obligation operated for a reasonable term beyond the JV. However, the parties were in a fiduciary relationship. The Company had benefited from the infrastructure for the purpose of deriving 50% of the milk cheque during the JV. The detriment to the Partnership materialized in the ensuing months."

"The Partnership submits that the Company cannot avoid the detriment caused to the Partnership simply because 31 October 2018 was the last day of the JV. There needed to be a necessary temporal nexus between the repairs undertaken or replacement of any relevant infrastructure after the JV had ended for liability to attach to the Company. Darin's evidence in respect of each of the items in Annexure D related to that nexus." (Closing Submissions, paragraphs 330)

1. Mr O'Haire, on the same theme, noted (Closing Submissions, paragraph 377) that:

"every one of the items [in Annexure D] relates to work that occurred after the end of the JV. In some cases, the work was undertaken many months or years after the JV ended."

1. In the following paragraph he said that Darin gave no evidence that his brother (or presumably his brother's Company) had been called upon to repair any items and had refused. He continued, at paragraph 380, asserting that these items were not raised in pre-action correspondence between the solicitors and were brought to the defendant's attention for the first time when the proceedings were commenced.
2. Finally, at paragraph 381, he said that since the items were on land owned and occupied by the plaintiffs, the defendant Company's ability to adduce evidence as to those items was limited.
3. The first item claimed was replacement of breach rails in the dairy at Farm 2, with the work said to have been carried out 28 November 2018 by Darin's son Jayden and a welder, Adam Bull. Darin explained:

"The breach rails are 2 inch gal pipe that runs one end of the dairy to the other on the left and the right-hand side and it's what the cows sort of rest their backside on. The front rails are called the "breast rails" and the rear rails are called the "breach rails" ". (T518, L26-31)

"They had all rusted out in various places so ... I got an employee - a welder and Jayden to do the repairs, which the repairs had to be conducted between milkings and one side at a time ..." (T519, L4-8)

1. Mr O'Haire referred to Craig's evidence that at the end of the joint venture the breach rails were still being used without problems (T1428, L18-25) and that there was no risk of them breaking and injuring a cow. (T1789, L6-30) Mr O'Haire said that in so far as Craig had said that these rails were renewed in 2008 by an organisation known as GreenCon, his evidence ought not to be accepted. He said that the invoice at CB 2075 referred to the replacement of "brest [sic] rails". The details of the work undertaken appear on the following page, and Mr O'Haire's observations appear to be accurate. Therefore, he said, the rails dated back to the 1990s. He continued:

"There is no pleaded allegation, and Darin gave no evidence, that the Company failed to repair or maintain the breach rails during the course of the JV.

Accordingly, the Partnership has not established any breach of the JV Agreement by the Company in respect of the breach rails." (Closing Submissions, paragraphs 390-391)

1. I accept Mr O'Haire's contention in this respect. Whilst accepting, at least for the sake of the present argument, that the venturers owed fiduciary duties to one another, I reject the contention that that fact in itself would extend the venturers' obligation to contribute to the cost of repairs and maintenance after the end of the joint venture. The claim for this item therefore fails.
2. Similar reasoning would lead to the rejection of each of the items claimed under Annexure D, because, as Mr O'Haire observed, the work in each case was carried out after the end of the joint venture. In so far as it was alleged that the defendant Company failed to provide its unit or units of labour to assist in dealing with these matters, once again the fact that the work was done after the end of the joint venture and there was no evidence to the effect that unsuccessful requests or demands were made for the provision of labour from the defendant or on its behalf before the end of the joint venture means that this element of the claims relative to Annexure D must also fail.

"Further relevant terms of the Joint Venture Agreement were that in respect of labour to be provided for the day-to-day operation of the joint venture:

1. the Company would:
   1. employ dairy workers to supplement the labour required for the operation of the joint venture;
   2. pay each such employee their employee entitlements.
2. for the day-to-day operations of the joint venture, the Partnership by the Plaintiffs would contribute 50% of the labour and the Company by Craig and Talia would contribute the other 50% of the labour 7 days per week.
3. when the Partnership had any time off, the Partnership was responsible for the cost of any employees used to supply the Partnership's 50% labour unit for that time off.
4. when the Craig and Talia for the Company had any time off, the Company was responsible for the cost of any employees used to supply the Company's 50% labour unit for that time off.

The terms were partly express and partly implied. In so far as the terms were express, they comprise statements made by Darin for the Partnership and Craig for the Company to the effect pleaded. In so far as the terms were implied, the terms were implied to give business efficacy and/or were obvious terms." (CB 31-32)

1. Ms Harris (Closing Submissions, paragraph 215) said "This term is not in issue." Reference to a document dated 17 March 2025 and styled "Amended Trial Defence and Counterclaim" has the defendants saying they deny paragraph 6, and referred to earlier paragraphs in the pleading: namely clause 5(l), subparagraphs (i) to (iv), and 5AA, subparagraphs (c) to (f).
2. Mr O'Haire (Closing Submissions, paragraph 588) said:

"The [plaintiff] Partnership's claims in Annexures F and G relate to allegations that, between July 2014 and June 2018, the [defendant] Company improperly charged the Partnership in respect of the costs of labour used to cover "time off" taken by the Company."

"The first issue relates to the Company's obligation to account for the Set Wages Charge pleaded in [7] of the ASOC that was paid on account by the Partnership. The second issue is how to determine whether the Company overcharged the Partnership for time its directors had off, which meant their labour contribution was covered by casual staff." (Closing Submissions, paragraph 215)

1. I turn at the outset to the "first" issue identified by Ms Harris. Paragraph 7 of the statement of claim alleged that "in or about May 2014" it was agreed as a term of the joint venture that the defendant Company would charge the plaintiff partnership a set amount per month plus Goods and Services Tax for wages for employees, and credit the partnership with any difference between the amount of the Set Wages Charge. The defendants denied this allegation, referring to the same paragraphs of their defence. The "Set Wages Charge" as described by the plaintiffs was described by the defendant as the "management fee". According to Mr O'Haire, the evidence showed that this fee was the Company's, to do with as it pleased, without any obligation to account. (T1337, L14-19) Craig agreed with me that the figure of $70,000 "was agreed on and ... was to be at your company's disposal and not subject to be accounted for to your brother". (Ibid, L20-23) Craig agreed.
2. Of the figure of $70,000, $44,000 represented the payment for Mr Lachlan Jones, and the balance was to be "for casuals that take up Lachlan's every second weekend off and any public holidays". According to Darin, this amount was also intended to cover superannuation and WorkCover. (T687, L9-19) Darin agreed in cross-examination that he had a discussion with Craig as to the amount of the management fee, and they were "attempting to estimate an amount that it would cost to replicate one person working full-time every day for a year." The initial figure proposed by Darin was $60,000. (T689, L19-24)
3. Mr O'Haire said (Closing Submissions, paragraph 197):

"there was in fact no reconciliation, or requests to reconcile, the management fee and wages charges during the JV".

1. He referred to Darin's evidence at T682, L26-30, and Craig's at T1549, L11-16. He said further that the management fee:

"included a component of GST. Darin's evidence was that this was done intentionally, because it was a management fee rather than a reimbursement of wages. This supports the view that the management fee was a fee paid to the Company for a service, rather than an amount to be held by the Company on account of wages." (Closing Submissions, paragraph 197)

1. Darin agreed that the "set amount" included a component of GST. (T684, L24-28) He agreed that the inclusion of GST was not done casually, but done with a bit of thought and realisation as to the differing tax consequences. (T691, L10-13)
2. If the "Set Wages" arrangement were in writing, the mode of performance would not be admissible as to the meaning of the clause. Where there is a dispute as to what was agreed, what was actually done has the capacity to shed light on what was agreed.
3. In my view, the very concept of a management fee or a "Set Wages amount" is to leave it to the payee to manage how its obligations are to be fulfilled: whether by one employee, a multiplicity of employees, or by the family of the director and shareholder of the Company. This is consistent with the view that the management fee is the Company's absolute property to do with as it chooses. Ms Harris said that the contemporaneous provision of wages information to the plaintiff partnership by the defendant Company was indicative of an obligation to account, and the suggestion that there was no such obligation was a recent invention. (Closing Submissions, paragraph 233) A more obvious explanation would be that the provision of that information was in the interests of transparency. The lack of any demand during the joint venture for an accounting relative to this management fee or Set Wages charge is more eloquent in support of the defendant Company's position.
4. I turn next to what Ms Harris described as the "second" issue: alleged "Overcharging for employee wages for periods when the company had time off". Paragraph 27 of the statement of claim alleged (somewhat bizarrely) that "During the Term, the Company took time off". Paragraph 29 said:

"In breach of the terms of the Joint Venture Agreement, the Set Wages Charge included employment costs of the Casual Employees incurred by the Company to cover the Company Time Off from about 1 July 2014 to 30 June 2018."

1. The reference to the "Company" taking time off should be regarded presumably as referring to Craig and his wife Talia, or at least Craig himself. As regards the time when there was a set management fee payable from 2014 to 2017 for which the defendant Company did not have to account, this claim must necessarily fail. Ms Harris observed that the records required to be kept under the Fair Work legislation and under the Corporations Act 2001 had not been retained, or perhaps created in the first place, and therefore:

"the only available contemporaneous record available to provide the most reliable method of determining what days Craig didn't work was the dairy diary and two casuals milked: one covering for 'Craig' and the other casual was covering for the [plaintiff] Partnership's full-time employee." (Closing Submissions, paragraph 246)

1. On the basis of what I have already said, the claim arising out of the second issue identified by Ms Harris can only effectively be made for the period August 2017 to June 2018.
2. Mr O'Haire referred to notes kept by Craig at CB 1267, 1276, and 2333-2334. He referred to Craig's evidence that if he or his wife Talia took time off, "he would deduct the wages relating to that period from the amount that he charged to the [plaintiff] Partnership." (T1341, L29 - T1342; Closing Submissions, paragraph 599) Craig, in answer to a question by me, said that he and Talia would advise Darin of the precise amount of wages that had been incurred, and the partnership would make payment of that amount, except where they took holidays when "we would deduct off an amount". He agreed with me the effect was that "the wages to replace you and your wife were for your account, not for your brother's". (T1341, L29 - T1342, L8) He said that he remembered a holiday taken by Talia and him, and he:

"took the full amount that was paid to staff in that period ... divided it by 2 ... so that we were responsible for 50 per cent of that labour, and then charged the partnership the other 50 per cent of that labour." (T1342, L17-23)

1. Mr O'Haire carried out a lengthy analysis of the use of the dairy diary as a basis for the plaintiffs' "time off" claim, and contended (Closing Submissions, paragraph 623) that the dairy diary and its extrapolations did not provide a satisfactory basis to make any findings against the defendant. He said the methodology employed by the plaintiffs was as follows:

(b) casual staff recorded their hours in the dairy diaries;

(c) therefore, if two casual staff recorded their hours for a particular milking session, then there is an inference that Craig did not conduct that milking." (Closing Submissions, paragraph 606)

1. He said that since there were other tasks on the farm apart from milking, Craig might have been carrying out such tasks elsewhere on the farm, rather than "taking time off". Further, he said that Craig did not always make notations in the dairy diary, and may have been working on days where his writing did not appear on the relevant page. (Closing Submissions, paragraph 610(b)) So much, Mr O'Haire said, was conceded by Darin. (T703, L3-5; T1916, L22-27)
2. In these unhappy circumstances, the burden lay on the plaintiffs to make good their contention of overcharging. The materials on which they rely do not provide a satisfactory basis to make that finding, for the reasons urged by Mr O'Haire. Further, they are contradicted by the evidence of Craig. The claims for these amounts therefore fail.
3. Annexure G, according to paragraph 34 of the Statement of Claim, refers to an alleged overpayment by the plaintiffs of the charges for salaries and wages. According to paragraph 256 of Ms Harris's Closing Submissions, the amount of the overcharge was $43,088.92, which is the amount referred to in the particulars to paragraph 34 of the Statement of Claim. This figure, according to the Statement of Claim and Ms Harris's Closing Submissions, is made up as follows:

(b) FY 2016 - $16,555.70

(c) FY 2017 - $14,491.13

(d) FY 2018 - $4,436.26." (Closing Submissions, paragraph 256)

1. At Closing Submissions, paragraph 250, Ms Harris said that the PAYG statements prepared for casual employees Rebecca Horgan and Seadon Cornelissen were inaccurate, in that they were "paid more than the gross salaries declared in their respective PAYG statements". She said no amended PAYG statements had been provided or discovered. She referred to her cross-examination of Craig's wife, Talia, stating that when confronted with these irregularities she was unable to provide an explanation.
2. Mr O'Haire in his Closing Submissions said at paragraph 628 that any discrepancy in payment of wages for Mr Lachlan Jones was accounted for by reference to a salary sacrifice agreement or arrangement described at [58] above. He said that in so far as the plaintiffs may contend that that salary sacrifice arrangement was illegal, such an attack in the context of this proceeding was misconceived. He said:

"it is not necessary for the Court to determine the validity of the [salary sacrifice] agreement; the [defendant] Company in fact paid the cost of the motorbike, which was provided to Mr Jones in exchange for reduced wages." (Closing Submissions, paragraph 629)

1. I accept the contention that as between the plaintiffs and the defendant Company, the cost of the motorbike is properly to be counted as a wage expense. According to Mr O'Haire, the Company's position as to wages and salaries charged by it to the plaintiffs is to be found at CB 582. As to the cross-examination of Talia Blain, he said (Closing Submissions, paragraphs 632-633) the wage payments for the financial year ending 30 June 2018 for Ms Horgan and Seadon Cornelissen were recorded in both the wages book and an MYOB extract (CB 1262, 2029 and 2032).
2. All in all, I remain somewhat baffled by these ins and outs, and am unable to come to a confident conclusion. Ms Harris (Closing Submissions, paragraph 216) said that the regime whereby a "set wages charge" or a "management fee" was payable by the plaintiffs to the defendant Company operated from May 2014 to February or May 2017. At [486] I concluded that this management fee or "set wages charge" was to be regarded as the absolute property of the defendant Company, and during that period, which would extend to the financial years ending 30 June 2015 and 30 June 2016 and most of the financial year ending 30 June 2017, there was no obligation on the part of the defendant Company to account for the wages which it paid. Therefore, there could be no question of the plaintiffs being overcharged. That disposes of the whole of the $43,088.92 allegedly overcharged by the defendant Company to the plaintiffs, leaving only the sum of $4,436.26 allegedly overcharged in the year ending 30 June 2018. In those circumstances I accept the calculations made by Mrs Talia Blain as evidenced in the MYOB extract and the wages book. This claim therefore fails.
3. There is also a claim relative to alleged underpayment of employees, principally as superannuation, WorkCover, and so forth. The evidence did not descend to particularity as to which person or entity would, according to Commonwealth industrial law or any applicable State employment law, be responsible for these items; nor was I referred to the provisions in industrial law providing time limits for proceedings to recover short payments in these entitlements. In those circumstances, even if the alleged deficiencies are regarded as proven, it is not evident or proven how those deficiencies would constitute a liability of the plaintiffs, thereby inflicting loss and damage upon them.

1. According to paragraph 104 of the defendants' Amended Trial Defence and Counterclaim:

"On or about 31 September 2018, being 1 month prior to the termination of the joint venture on 31 October 2018, the [plaintiff] Partnership denied the [defendant] Company access to Out Paddock 1 and Out Paddock 2 for the purposes of cutting fodder that Company had grown on behalf of the joint venture (restriction of access)."

1. This appears to be a reference to the "notice" addressed to the defendant Company by email dated 19 July 2018, including the statement:

"The Land Lease agreement ceases on the 31/09/2018. You CANNOT harvest any hay or silage on land owned by DW & SL Blain." (See [51] above)

1. The reference to a non-existent date, namely 31 September, must be taken as a mistaken reference to the last day of that month, namely 30 September. The error seems to have been carried over from the original tax invoice-cum-notice to the defendants' counterclaim. As previously explained, there was a tenancy from year to year in favour either of the defendant Company or the joint venture. It was not competent for the plaintiffs unilaterally to terminate the lease in the way the tax invoice-cum-notice purported to do. Six months' notice to quit was required.
2. The damage claim by the defendant Company was summarised in Closing Submissions by Mr O'Haire as "Replacement hay". (Heading to Closing Submissions, paragraph 336). At paragraph 337 he alleged the existence of a lease and its invalid purported termination. He said (subparagraph (h)) "the annual harvest of hay or silage generally commenced in October". He referred to Craig's evidence-in-chief:

"Silage generally starts in October, can continue on into November, but generally if weather conditions are permitting you can certainly get it all done in October. Then hay was generally late November or December." (T1364, L28 - T1365, L1)

"the only purpose of that annotation [viz, on the tax invoice] was to prevent the [defendant] company from harvesting silage from the out-paddocks in that year?"

"It's not a matter of inference, that's what it says?"

1. Mr O'Haire then referred to Darin's evidence to the effect that he gave the notice based on a failure on the part of the defendant Company to pay for fertiliser. Referring to various passages, Mr O'Haire said that Darin ultimately conceded that this was not true. (Closing Submissions, paragraph 340) I need not determine the rights and wrongs of the fertiliser issue. In the case of a periodic tenancy with no written terms, a landlord has no entitlement to forfeit or prematurely terminate a tenancy from year to year for a failure to fertilise or pay for fertiliser. Again, since there had not been an agreement to increase the rental for the out paddock, based on the findings I have already made, this could not justify the purported early termination of the lease. The plaintiffs acted wrongfully in serving the tax invoice-cum-notice. Therefore, said Mr O'Haire (Closing Submissions, paragraph 343):

"(a) the Company was prevented from accessing silage or hay harvested from the Out Paddocks, which it would otherwise have used to feed its herd;

(b) it was required to source alternative feed for its cows, to replace that silage and hay."

1. The defendant Company's counterclaim was for half the silage which the Company would have received as a joint venturer as it had in previous years, viz 350 bales, which required 170 tonnes to replace 350 bales of silage. Mr O'Haire referred to Craig's evidence (T1368, L10-24) and said that Darin agreed as to the equivalence of 170 tonnes of hay to 350 bales of silage. (T1073, L15-18) This is an accurate record of the concession that Darin made.
2. Mr O'Haire (Closing Submissions, paragraph 346) referred to invoices at CB 1933-1936 for 167.9 tonnes of hay for a price of $59,916.22. He conceded, however (Closing Submissions, paragraph 347), that the defendant Company's loss in this respect was less than that figure, "because by purchasing hay it also avoided the costs involved in harvesting the silage", being half the cost of fertiliser ($6,635.64), and the invoice shown at CB 1010, therefore $3,317.82. Mr O'Haire said that this was a figure accepted as accurate by Darin, referring to his evidence in cross-examination at T1074, L13-30. Darin seems to have made this concession in answer to a question put by me as to the cost of harvesting. Mr O'Haire said that Darin accepted $32 per bale. (Ibid, L26-30)
3. Mr O'Haire then said (Closing Submissions, paragraph 348):

"the [defendant] Company's total damage suffered as a result of the restriction of access is therefore $45,933.90, being $59,916.22 (cost of hay), less $3,317.82 (cost of fertiliser), less $10,622.50 (cost of harvest)."

"sought to undermine this claim by reference to the fact that the Company harvested silage from Farm 1 in 2018, and did not share that harvest with the Partnership." (Closing Submissions, paragraph 349)

1. At paragraph 350 of his Closing Submissions, by reference to documents at CB 1927-1932, Mr O'Haire said that these documents showed that the plaintiffs harvested "at least 696.75 more bales than the company in 2018".
2. Ms Harris said that the contentious notice was "wrong" in asserting that there was a land lease: "At best, there was a year-to-year licence". (Closing Submissions, paragraph 588) She also observed that the out paddocks were owned by Darin, not by his wife. She said at Closing Submissions, paragraph 594:

"The Notice cannot serve as a notice to terminate the right to use Farm 2 and the Out Paddocks where those lands continued to be used for general farming".

"did not constitute an act of acceptance by the Partnership that the Company had repudiated the JV for non-payment of rent."

"The Company's claim is for hay, not sileage. Darin and Craig gave evidence about the superiority of sileage as fodder to hay, but both were necessary fodder." (Closing Submissions, paragraph 605)

"The dates of Lyne Contracting tax invoices [relative to the harvest] which refer to Out Paddock 2 are 22 October 2018 and 1 November 2018. It is reasonable to assume that some harvesting on Out Paddock 2 occurred during the JV. If the Defendants were entitled to a 50% share of that harvest, then that harvest would need to be accounted for by the Partnership. The harvest was sileage, not hay." (Closing Submissions, paragraph 605)

1. She said therefore (Closing Submissions, paragraph 609) that the defendants' claim was "misconceived". At Closing Submissions, paragraph 505, Ms Harris seems to concede that as regards harvesting of silage on Out Paddock 2 during the term of the joint venture, the defendant Company might be entitled to a 50 per cent share of that harvest for which the plaintiffs would have to account.
2. At paragraph 615 of her Closing Submissions she said:

"A claim for loss and damage arising from an alleged breach of contract required the Company to prove:

(a) a contractual right to profit share in the harvest that occurred during the JV;

(b) where the harvest straddled the end date of 31 October 2018, any contractual right to profit share in the harvest beyond that date required an entitlement to the harvest within a reasonable period following the end of the JV (which is not pleaded in [4], [5], [5AA], [106A] or [108A] Trial Defence);

(c) proving what was harvested (hay &/or sileage) during each of those periods and from what land;

(d) claiming the amount (50%) and type of harvest (hay &/or sileage) it was allegedly denied;

(e) the loss and damage suffered, which was its share of profit from harvesting before 31 October 2018 that the Company would have received from any proven breach;

(f) the remedy is either the delivery up of the 50% profit of the harvest (not possible now given the harvest is a consumable) or the value of that 50% profit from the harvest before 31 October 2018."

1. Then Ms Harris, in a section headed "Partnership to be reinstated with hay/sileage to the position it was in at the commencement of the JV", said:

"622. The fiduciary duty to account is of course two-day. The Company cannot derive a benefit as a JV party to the detriment of the Partnership.

1. At the commencement of the JV, the Company had the benefit of the using the Partnership's existing stock of consumables. Hay and sileage harvested in October and November 2011 were two such consumables.
2. The Court Book contains tax invoices for the October 2011 to December 2011 harvest:

(a) Townsend Contractor, dated 30 October 2011, for 77 silage rolls.

(b) Nick and Karen Blain, dated January 2012 for 655 rolls of silage and 162 rolls of hay.

1. In total: 732 rolls of silage and 162 rolls of hay.
2. The taking of accounts between fiduciaries, means the benefit received by this harvest by the Company needs to account for this benefit. (Closing Submissions, paragraphs 622-626)
3. Next, Ms Harris referred to what she described as "Partnership's counterfactual submissions", [106A], [108A]. These references seem to be to the plaintiffs' Reply and Defence to Counterclaim. She said these paragraphs and part of the plaintiffs' case raised two issues: first, that a remedy for breach of contract ought not to put the aggrieved party in a better position than it would have been had the contract been observed. She said:

"The Partnership recognising the obligation to account for its harvest (here, sileage) as a fiduciary, would place the Defendant in the position it would have been in if the JV accounting had occurred on or after 31 October 2018. There is no loss." (Closing Submissions, paragraph 627(a))

"It was inevitable that the [defendant] Company was going to have purchase hay. There is no causal connection between the alleged breach by the Partnership of an implied term - that did not arise one [sic] or before the commencement of the JV - and the purchase of the hay." (Closing Submissions, paragraph 627(b))

1. At paragraphs 628-640 she referred to a large number of items of evidence as to the cutting, availability and storage of hay during the term of the joint venture, concluding at paragraph 640:

"On balance, the Defendants have not proven breach, and even if breach was proved, there is no loss arising from the breach, as the Partnership will account for the sileage cut before 31 October 2018." (Closing Submissions, paragraph 640)

1. A number of points need to be made at the outset. First, whilst the statement of claim seeks an accounting of joint venture expenses, there is no prayer for relief for accounting generally, much less for accounting of a silage harvest. At paragraph 107(d) of the reply it is stated:

"... the Company must account to the Partnership for silage and hay from Farm 1 and the Company's Out Paddock, located on Shurvells Road, during comparable periods of time."

1. This pleading cannot add to the relief sought in the statement of claim. The Reply and Defence to Counterclaim does not purport to raise any new cause of action, and perhaps it would have been incompetent for this to be done: see Rule 13.09(2), which states:

"A party shall not in any pleading make any allegation of fact, or raise any new claim, inconsistent with any allegation made or claim raised in a previous pleading by that party."

1. The counterclaim relative to the "land lease" is for common law damages, not for an accounting as to income from the partnership. The statement of claim seeks an accounting for joint venture expenditure only. In my view, it is not competent for the plaintiffs to raise the issue of accounting for joint venture income by a sidewind in their defence to counterclaim. This might have been pleaded as an equitable setoff, but it has not been done in this way.
2. All in all, this knotty pleading issue arises out of the unhappy decision that these parties appear to have made to create what was, to all intents and purposes, a partnership, but to set their faces against the Partnership Act 1958 and its traditions, structure, rules and remedies. In their dealings relative to the out paddocks, the brothers and the defendant Company conducted themselves on the basis that the Company was to be treated as tenant of the out paddocks, paying 50 per cent of the rent which might otherwise have been payable. This represented a distinct variation from the Farming Agreement. Darin referred to the amount payable as rent, not a modification of joint venture income. He referred to the relationship as being a "land lease".
3. It would have been preferable, in my view, if matters had been structured differently. Given that the parties have structured matters in the way that they have, the analysis advocated by Mr O'Haire, based on the common law of landlord and tenant, appears to be the correct one.
4. Ms Harris correctly observed that in so far as the defendant's claim is for deprivation of rights over Out Paddock 2, terminating on 31 October 2018, it would not seem appropriate to fix damages based on what might have been harvested by way of silage after 31 October. On the other hand, if the Company had retained access to harvest on Out Paddock 2 in the knowledge that its rights in that regard would terminate on 31 October 2018, it is reasonable to suppose that it would have ensured that harvest operations for silage for its advantage would have been concluded by that date. The notice served by the plaintiffs was, in my view, repudiatory. Ms Harris correctly observed that in so far as Ms Sally Blain joined in the giving of the notice, her involvement was mere surplusage. It did not, however, deprive the notice of its repudiatory character.
5. For these reasons, the first defendant's counterclaim as to the cost of hay succeeds.
6. The next item of counterclaim refers to an alleged overpayment through the agency of Rabobank of the amounts owing by Craig to Darin under the second mortgage securing Darin's vendor finance. These matters are referred to at [71]-[72] above. The case for Craig was that Darin agreed successively to a reduction of the nominal rate of 7 per cent per annum interest under the second mortgage, first to 6.5 per cent and then to 5 per cent. The "payout" was calculated by reference to an interest rate of 6.5 per cent. Craig's counterclaim is for repayment of all interest charged above 5 per cent for the purposes of calculating the payout figure, on the basis that those moneys were paid under a mistake of fact, viz that the relevant interest rate was 6.5 per cent rather than 5 per cent. It was not suggested that Craig was mistaken on this point; rather, a mistake was made by his agent, Rabobank. Mr O'Haire conceded that Darin denied having agreed to the reduction. (T410, L12-29) He said Darin agreed in cross-examination that Craig had requested an interest rate reduction (T823, L25-29) Darin agreed that Craig paid a principal reduction in August 2016. (T820, L29-30) Darin had agreed to a reduction of the 7 per cent per annum interest rate to 6.5 per cent. (T822, L21-23) Darin agreed that there was a discussion in which Craig requested a reduction in the interest rate. (T823, L1-4) He denied, however, that he agreed to drop the rate to 5 per cent per annum. (Ibid, L14-15)
7. Ms Harris said her clients accepted that the interest rate on this mortgage loan was reduced to 6.5 per cent per annum as from June 2014. (Closing Submissions, paragraph 644) She referred to the Memorandum of Common Provisions which pertained to the second mortgage (CB 1989-2008); in particular, clause 31(11)(ii) which stated:

"the failure of the Mortgagee to exercise any power or discretion given to it by this Mortgage shall not, unless agreed by the Mortgagee in writing, constitute a waiver by the Mortgagee of the right of the Mortgagee at any time thereafter to require the Mortgagor to comply strictly with the provisions of this Mortgage." (CB 2007)

1. She said at Closing Submissions, paragraph 649, that it would have been competent for Darin to insist on payment at the rate of 7 per cent per annum; the reduction of rates agreed to in June 2014 not having been documented in writing. If, which was denied, there were a purported reduction of the rate to 5 per cent, it was competent for Darin to insist at the time of payout upon receipt of interest up to 6.5 per cent. She said that in so far as Craig had commenced paying interest at the rate of 5 per cent rather than the reduced 6.5 per cent rate, this was a breach of contract. (Closing Submissions, paragraph 650-1) It seems Darin did not initially notice the reduction in interest rate, as it was accompanied by a reduction in the principal sum which would in any event lead to a reduction in the amount paid by way of interest even if the rate were not varied. She said Darin had the assistance of his sister-in-law in calculating the payout figure at $207,583.33. (CB 751-753) She said that by virtue of clause 6 of the Memorandum of Common Provisions (CB 1992), when the agreed interest was not paid Darin could have applied the rate published under the Penalty Interest Rates Act 1983 but did not do so (Closing Submissions, paragraph 655-8), nor did he capitalise the arrears as he was entitled to under these boilerplate provisions. In those circumstances it could not be said that there had been any failure of consideration. (Closing Submissions, paragraph 659) According to the latest version of the Defence and Counterclaim, the larger payout figure of $207,583.33 was paid by Rabobank by reason of the mistake of fact (paragraph 115), and such moneys were recoverable by Craig as moneys had and received (paragraph 116).
2. The fundamental question therefore seems to be whether the payout made by Rabobank on behalf of Craig was the correct figure or not. If it was the correct figure there was no mistake, and the claim must fail. If the full amount paid over by Rabobank was in fact payable, it would not be to the point that there might have been a mistake involved in the payment, whether by Craig or Rabobank: Platemaster Pty Ltd v M & T Investments Pty Ltd [1973] VicRp 7; [1973] VR 93 per Gowans J.
3. It should also be noted that Craig has already been recouped for the alleged overpayment, albeit from Rabobank rather than from his brother Darin ([74] above).
4. The mistake here, if there be one, was made by Rabobank, not by Craig. As to this point, Mr O'Haire said (Closing Submissions, paragraph 29):

"By logical extension of these principles [viz, those relating to payments made under mistake], a payment made under bona fide mistake of fact by an authorised agent for an individual principal can be recovered, provided that the principal does not know that the agent is making the payment on an erroneous basis."

1. In this case the "agent" would be Rabobank, and the principal Craig. According to Mr O'Haire, this conclusion derived from the established proposition that:

"where the payment is made under a bona fide mistake of fact by an authorised agent of a company, the fact that some other agent of the company may have had full knowledge of all the facts does not disentitle the company to recover the money so paid, provided that the agent with the full knowledge does not know that the payments are not made on an erroneous basis." [I wonder if there isn't a "not" in this proposition which does not belong.] (Closing Submissions, paragraph 28(c)

1. Mr O'Haire referred to Simos v National Bank of Australasia Ltd and Guelman (1976) 10 ACTR 4, 14-15, per Connor J; Anglo-Scottish Beet Sugar Corporation Ltd v Spalding Urban District Council [1937] 2 KB 607, 627 (Atkinson J); and Turvey v Dentons (1923) Ltd [1953] 1 QB 218, 224-5. According to Mr O'Haire, the fact that Craig had already been recouped for his allegedly mistaken payment was no bar to recovery against the plaintiffs or Darin individually. He referred to Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516. (Closing Submissions, paragraph 30) In the Roxborough case, a vendor of tobacco products was found entitled to recover outlays by way of an invalid and unconstitutional excise duty, despite having recouped itself already by passing the impost on to its customers.
2. Ms Harris's point was that since any reduction of interest was not documented, the effect of the passages from the Memorandum of Common Provisions forming part of the mortgage meant that any interest reduction, even if agreed upon, was not legally enforceable. This might be regarded as a highly legalistic and unmeritorious contention. On the other hand, it seems at a moral level no less unmeritorious than Craig's attempt to obtain a double recovery of the alleged overpayment. This counterclaim fails.

1. Paragraphs 117 and 118 of the latest version of the defendants' Defence and Counter Claim seek payment of the sum of $53,492.40 said to be an unpaid amount of joint venture expenses claimed by the defendant Company: by Invoice 49, dated 31 August 2018, $44,450.03; Invoice 50, dated 30 September 2018, $3,186.26; and Invoice 51, dated 31 October 2018, in the sum of $5,856.11.
2. As to the first of those invoices, No 49, dated 31 August 2018, I pointed out to Craig that at the time of its issue a mediation had failed, a tax invoice with what purported to be a termination of the "land lease" relative to the out paddocks had been dispatched under an email dated 19 July 2018, and Darin had sent an email to his account manager at Rabobank, Mr Terry McMahon, which in effect announced the commencement of hostilities between the brothers ([51]-[52] above). I summarised the situation in these terms:

"In effect, the gloves are off, the knives are out at this point?"

"Well, yes, your Honour, but we were still acting in good faith at that time and Darrin [sic] had again given us the bundle of monthly expenses to be paid and we paid the entirety of the expenses and invoiced Darrin [sic] or the partnership for 50 per cent." (T1384, L30 - T1385, L11)

1. Mr O'Haire (Closing Submissions, paragraph 228), referring to Invoice 49, said Darin continued the practice of furnishing invoices to Craig in the expectation that the defendant Company would pay them. He referred to Craig's evidence to this effect.
2. When Darin was giving his evidence-in-chief, I asked him why the plaintiffs did not pay the amount invoiced to them under Invoice 49. The question was repeated by Ms Harris, and Darin replied:

"We just decided not to because we knew the joint venture was ending so we sort of allowed them to make that payment to see how it rolled, otherwise I may have been here looking for another 44 grand." (T596, L18-22)

1. Ms Harris (Closing Submissions, paragraph 673) stated:

"The Partnership accepts that it is indebted to the Company in the sum of $53,492.40, as claimed in [119] of the further amended counterclaim."

1. She complained that these matters were made good by the production of undiscovered documents, and "unnecessary costs have been incurred, and court resources used to pursue a claim that could have readily been dealt with prior to trial." (Closing Submissions, paragraph 674) I take that to mean that, subject of course to a potential offset against the amounts held to be owing by the defendants or one or other of them on their claim, this element of the counterclaim should succeed.

1. According to paragraph 124B of the latest version of the defendants' Defence and Counterclaim, at the end of the joint venture the defendant Company:

"was entitled to possession of 50% of the intermingled dairy herd, including the Excess Cattle ... pursuant to the terms of the Lease of Dairy Herd."

1. The phrase "Excess Cattle" was defined in paragraph 17 of the Defence and Counterclaim as being:

1. 3 Jersey Bulls (mature);
2. 2 Friesian Heifers (rising 3yr old);
3. 5 Friesian Heifers (rising 2yr old);
4. 4 Friesian Heifers (rising 1yr old);
5. 4 Crossbred steers (rising 2yr old);
6. 4 Crossbred steers (rising 1yr old)."
7. The "Excess Cattle" were in addition to the 26 heifers and 32 calves, each of which represented the division of the dairy herd between the plaintiff partnership and the defendant Company. The "Excess Cattle", according to paragraph 17 of the pleading, were taken into the plaintiffs' possession for sale on behalf of the plaintiffs and the defendant Company. According to paragraph 124B, the plaintiffs were aware that the defendant Company "intended to exercise its option under the Lease of Dairy Herd to purchase" its half of the herd. The plaintiffs were aware of this because of a letter from the defendants' solicitors to the plaintiffs' solicitors dated 25 September 2019, according to the Defence and Counterclaim. The agreement for the sale of the Excess Cattle to be made by the plaintiff partnership was said to have been reached orally in a conversation between Darin and Craig.
8. According to paragraph 124E of the Defence and Counterclaim, the plaintiffs either did not sell the Excess Cattle or, if they did, they did not pass on 50 per cent of the proceeds of sale to the defendant Company. According to paragraph 124F, this inflicted damage on the defendant Company in the sum of $33,250.
9. In support of this counterclaim, Mr O'Haire referred to evidence of Craig at T1404, L13-21, to the effect that he and Darin agreed that the plaintiffs would retain possession of the Excess Cattle, sell them, and account to the defendant Company for half of the proceeds of sale. Mr O'Haire then referred to evidence of Darin where he said:

"I don't remember the exact conversation, your Honour, but they were probably going to be sold. We are not denying that we didn't end up with them, we just don't know where they went because when we did can [sic] the split at the block - so half went that way and half went on to a truck so we don't know how many went on to a truck and how many more stayed behind. We know it was maybe one, two or three, but we can't - the records just aren't good enough to work out whether they all stayed there or some went on the truck." (T1043, L23 - T1044, L1)

1. The truck was taking the stock to Craig's, which was 20 minutes away from Out Paddock 2. (T1044, L2-5) I asked how many Excess Cattle were the plaintiffs left to dispose of, and Darin replied:

"... according to the records, I think there was five. Now, we put them down that they stayed because we probably can't find where they went." (Ibid, L13-16)

1. Of this five, the only one whose fate he could confidently state was one which was retained as a pet for his daughters, and had since died. (Ibid, L18-23) As to the other four, he could give no further information. (Ibid, L22-26)
2. Mr O'Haire said the defendants' account was supported by a contemporary cattle register created at the time the herd was divided. (CB 833-841) He said this was annotated with words such as "sell" or "to be sold" in the handwriting of Craig and Darin. He referred to Darin's evidence (T1040, L11-17 and T1061, L1-9) where Darin agreed that the register was a document used "when the preg test was taking place". This "preg test" was part of the process of dividing the herd. Darin agreed that both his writing and Craig's writing appeared on the document.
3. Ms Harris (Closing Submissions, paragraphs 675-699) contended that the Cow Lease agreement and, if it applied, the Farming Agreement, had overriding effect, and were inconsistent with the arrangements alleged in the Defence and Counterclaim. The Cow Lease is dated 5 December 2011, in what seems to be the same hand that dated the Farming Agreement. The document is to be found at CB 763-774, with execution clauses for Darin and the defendant Company at page 772. The term of the lease (Item 3) is said to be "Eight years starting on the commencement date", namely 15 December 2011. Paragraph 31 grants the defendant Company an option to purchase "the reversionary interest in livestock", which might be exercised "at any time during the final year of the lease by giving written notice to the lessor". The word "livestock" is defined in clause 1, CB 764, as follows:

" "Livestock" means the livestock described in item 1 of the Schedule, any replacement livestock and any progeny reared for the purposes of replacement, but shall not include any excess progeny."

1. Livestock as described in the schedule under Item 1 is as follows:

"The dairy herd belonging to the vendors [sic] as at the commencement date, depastured at the property described in Item 6, comprising 130 cows, 35 heifers and 35 calves." (CB 773)

1. Excess progeny is defined in paragraph [1845] EngR 836; 1, CB 663, to mean:

"The progeny of the livestock not required as replacement livestock."

1. The phrase "Replacement livestock" is defined in the same clause to mean:

"progeny of the livestock reared by the lessee for replacing rejected livestock or livestock purchased by the lessee to replace rejected livestock."

1. The phrase "Rejected livestock" was defined to mean:

"any of the livestock which are destroyed or die, or which, in the opinion of the lessee, become unsuited or unfit for milk production, whether by reason of age, deformity, disease, deficiency in milk production or any other reason recognised according to the best methods of dairy livestock husbandry."

1. Ms Harris (Closing Submissions, paragraph 677) said that:

"Bulls and steers are not replacement cows and are not reared for the purpose of replacing any cows, female heifers or female calves. It is clear that bulls are excluded from the Cow Lease."

1. In the following paragraph she said the Farming Agreement did not refer to bulls, replacement cows and excess progeny. She said at paragraph 690 that the split as alleged by the defendant Company was consistent with clause 31 of the Cow Lease, and, if it applied, clause 3 of the Farming Agreement.
2. At paragraph 682 of her Closing Submissions, Ms Harris referred to a letter from the defendants' solicitors, Maddens, dated 25 September 2018, which referred to the defendant Company's option to purchase under clause 31 of the Cow Lease and called for a "drafting" of stock 50:50 as per the terms of the Farming Agreement. She referred to a further letter by way of email from Maddens dated 30 November 2018, stating inter alia:

"I am instructed that all livestock has been drafted off to the parties' mutual satisfaction." (Closing Submissions, paragraph 684)

1. Therefore, said Ms Harris (Closing Submissions, paragraph 685), the defendant Company made no claim for stock beyond the 50/50 split, and the letter from its solicitors dated 30 November 2018 constituted an effective "closing of the accounts" on this subject.
2. She noted at paragraph 691 that:

"Clause 14 of the Cow Lease provided in effect that when the Lease ended, the [defendant] Company was to peacefully surrender and yield up to Darin, the whole of the livestock in good health and condition in all respects."

1. She said Darin had been considerate in allowing a mustering of the dairy herd before the $50,000 residual payment provided for in the lease had been met. (Closing Submissions, paragraph 695)
2. In the previous paragraph, she said:

"The bulls and steers were not governed by the Cow Lease unless they were 'excess progeny'. There is no evidence that any bulls or steers were regarded as or treated as 'excess progeny' by either JV party. The evidence was that the bulls were used to cover cows, and the steers fed the family. There is no evidence that Craig or the Company purchased any bulls or steers. Darin's evidence about what livestock he owned at the commencement of the JV should be accepted as reliable." (Closing Submissions, paragraph 694)

1. Mr O'Haire (Closing Submissions, paragraph 269) referred to clause 23 of the Cow Lease, which stated as follows:

"23. (1) The lessee may sell or keep and retain any excess progeny reared in any year and such excess progeny or the proceeds of sale thereof shall be the property of the lessee, PROVIDED HOWEVER the lessee shall not keep and rear any excess progeny in excess of that agreed between the lessor and the lessee.

(2) All other progeny of the livestock not otherwise required by this lease to be kept or otherwise provided in subclause (1) above, shall be sold by the lessee and the proceeds thereof shall belong to the lessee." (CB 767-768)

1. The definitions of "excess progeny" and "replacement stock" are as follows:

" "Excess progeny" means the progeny of the livestock not required as replacement livestock.

"Replacement livestock" means progeny of the livestock reared by the lessee for replacing rejected livestock or livestock purchased by the lessee to replace rejected livestock." (CB 763-764)

1. As Ms Harris correctly observes, the "Cow Lease", as she describes it, does not extend to bulls at all, unless the bulls are to be treated as "excess progeny" and are not governed by the terms of the lease. Neither the lease nor the Farming Agreement creates immutable terms; nor do they lay down any formalities for effective variation (cf the Memorandum of Common Provisions for the vendor finance second mortgage over Farm 1). These beasts over and above the 50/50 split could be the subject of any arrangement which Darin and the company saw fit to arrive at for the "drafting" of the stock. Ms Harris was critical of the manner in which the counterclaim on these matters was pleaded, stating (accurately) that there was not a ground alleged which would have given title to the company.
2. The counterclaim was, in this respect, elliptical. However, what it boiled down to was that whatever might have been the title situation as to the comingled herd, and whatever the Cow Lease might or might not have provided - or the Farming Agreement, what the parties agreed to do was to split the operative herd 50/50 and to commission the plaintiffs to sell the rest and split the proceeds 50/50.
3. Darin did not seem to deny that this was the agreement on the day. He pleaded ignorance based on a lack of records. I found this denial unconvincing. The split between the brothers was bitter. This litigation has been pursued to a degree of detail and pettiness which I have found unexampled in 30 years as a tribunal member and judge. In this atmosphere it is inconceivable that Darin would have been so indifferent as to what was going on, as the stock were being drafted and divided, as he claims he was. In those circumstances I treat his plea of ignorance, which seems to boil down to the equivalent of a plea of "do not admit", as equivalent to an admission. The letter relied on from the defendants' solicitors, Maddens, dated 30 November 2018, expressing satisfaction on their clients' behalf with the "drafting" of the cattle, does not, as Ms Harris contended, represent an acknowledgment that what occurred was entirely satisfactory to the defendants, therefore blocking any claim they might now make. I accept Mr O'Haire's contention that the letter means no more than that, as to the excess cattle, what was agreed upon on the day was satisfactory to the defendants, not that such agreement had been carried into effect.
4. This item of the counterclaim succeeds. Craig gave evidence, which I accept, which is referred to by Mr O'Haire (Closing Submissions, paragraph 279-296), as to the existence of the stock the subject of the counterclaim.

1. Perhaps responsively to the range of claims mounted by the plaintiffs as to tools and other pieces of equipment, the defendant company claims a series of items (even including another car wreck and miscellaneous automotive items). According to Mr O'Haire, these items were referred to in letters of demand from the defendants' solicitors to the plaintiffs' solicitors dated 25 September 2018 and 18 March 2019. (CB 1895 and 1911)
2. The first item is a vehicle hoist which Mr O'Haire said Darin conceded was purchased second-hand by Craig from Adam Rowe. (T662, L10; T891, L2-15) The hoist required bolting to the floor (T892, L11-15), though it could be removed (T892, L19-28) Darin agreed in cross-examination that he had offered the return of the vehicle hoist, but has since adopted the position that it was not appropriate to return, since it was a fixture. (T893, L2-10) Darin agreed that the hoist could be removed, stating:

"It could be but we would require an electrician to do it because it's hard wired in. So there's no plug to unplug, it's hard wired into the 480 - or 240 volt." (T893, L13-17)

1. Ms Harris (Closing Submissions, paragraphs 701-710) reviewed the evidence on this subject in detail, including the evidence from Adam Rowe. I did not understand the detail to invalidate the summary of the substance advanced by Mr O'Haire. She said, however, that the evidence of Mr Rowe gave a different aspect to that. He described the circumstances in which the hoist came to be installed at Farm 2, describing a sale agreement with Craig, and continuing:

"So we pulled it all apart a few months later and we shifted it around to farm 2, which Craig had put a new workshop floor in, in the shed there and fixed the roof up ... we had it ready to be put in there and we set it all up in there and Craig used to use it around there then." (T2084, L31 - T2085, L5)

1. Mr Rowe said he was paid $1,300, having purchased the item for $4,000. (T2085, L13-14) He described moving the item, stating "[we] shifted it with a car trailer in pieces". (Ibid, L30-31)
2. This evidence might raise a question as to whether the company is the correct counterclaimant, as distinct from Craig, who was said to have made the purchase. Since both are parties to the proceeding, this issue, if it be a genuine one, will be readily soluble. The more difficult issue is whether Darin is correct in taking the position that the hoist is a fixture, not a mere chattel. Ms Harris, drawing attention to Mr Rowe's evidence, said it showed that a new concrete floor was required at Farm 2 for the installation, and that the hoist was of such complexity and size that it required disassembly and reassembly to be moved. It was not a simple matter of unbolting and unplugging.
3. Mr O'Haire referred to long-established authority, and in particular the relatively recent decision of the High Court in TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576, 505 [24] in the joint judgment of French CJ, Gummow, Heydon, Crennan and Kiefel JJ, and the decision of Kay's Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VicRp 62; [1962] VR 429, 432−3. He said (Closing Submissions, paragraphs 21-24) that determining whether an item was a fixture or remained a chattel required a consideration of the degree and the object of annexation, noting that affixation to land in itself does not conclusively render an item a fixture, though it does raise a presumption. If an item is affixed merely for its better use as a chattel, it is not to be reckoned a fixture; whereas if the intention is to enhance the realty, it is.
4. As I remarked when the evidence as to the vehicle hoist was being given, these principles are long-established and capable of clear statement in the abstract. Their application in particular instances, however, is problematic. In contentious instances, it is often possible to derive both a purpose better to enjoy the item as a chattel and to enhance the realty as objects of the annexation. Here, it seems, according to Mr Rowe's evidence, that a workshop was being established on Farm 2. Part of that establishment was the installation in an existing structure of a new concrete floor. Installing a wired-in and bolted-down vehicle hoist could be seen as enhancing Farm 2 by the installation of a workshop or the enhancement of an existing structure as such. As to the bolting-down and wiring, one could regard them as enhancing the hoist as a chattel so as to (a) hold it steady and (b) give it a source of power. On balance, I believe the matters urged by Ms Harris would render this hoist a fixture rather than a chattel, and this item of the counterclaim fails.

1. Ms Harris said that the green HQ Holden sedan was identified in a photograph at CB 1924. She said the plaintiffs were not willing to return it, "as it was there when Darin purchased Farm 2 back on 11 June 2003". She referred to the agreed chronology, page 1, item 3. There was no claim for this item, she said, until the end of the joint venture. She referred to Darin's evidence at T664, L12-24. She said that according to Adam Rowe's evidence (T287, L14-18) the vehicle had been placed in a shed on Farm 2 in 1996 or 1997 and had not been moved since. She referred to Darin's evidence that the vehicle had no frame or wheels, and he had not moved it because he could not get it out of the shed. (T895, L7-11) In so far as there had been an agreement for return of certain items arranged by brother Paul Blain as an intermediary, she returned to Darin's evidence (T900, L29 - T901, L5) She said Darin's refusal to return this vehicle was "consistent with his belief that the car had been abandoned more than 30 years ago." (Closing Submissions, paragraph 720) She referred to a decision of the Northern Territory Supreme Court, Neave v Trenerry [1999] NTSC 3 [10], where Bailey J said that "abandoned" did not simply mean merely "lost" or "left":

"It means that the owner has intentionally relinquished all rights of ownership in the property".

1. Ms Harris also placed reliance on the Limitation of Actions Act 1958.
2. Mr O'Haire said (Closing Submissions, paragraph 311) that the position taken by the plaintiffs relative to the green HQ Holden was inconsistent with Darin continuing to assert title to the Monaro which was left on Farm 1. Mr O'Haire referred to a letter from the plaintiffs' solicitors dated 9 April 2019 (CB 1912-1914) where that firm stated, inter alia:

"The following items can be collected at your clients risk upon the return of my clients HQ GTS Monaro with the original disc break [sic] front end and diff (removed by your client) correctly fitted back into the vehicle along with the correct V8 tail shaft:

1. If the protagonists in this dispute were not members of the same family I would be inclined to accept Ms Harris's contention that the circumstances and the passage of time denoted an abandonment of the green HQ Holden. Where, however, the item was left on land occupied by a member of the family - a close relative such as a brother, who was for a substantial period of time engaged in a joint venture with the other brother - I do not believe any inference of abandonment should be made.
2. The cause of action asserted as to these counterclaim items is in detinue (Defence and Counterclaim, paragraph 136). In those circumstances, the cause of action does not accrue until the making of the demand, and therefore the relevant limitation period had not expired.
3. This counterclaim item succeeds.

1. Ms Harris (Closing Submissions, paragraph 728-732) said that it had not been proven that Darin was in possession of this door. Mr O'Haire condemned Darin's evidence on this point as being "evasive". This is an instance of an "oath against oath" conflict. For reasons previously given, I generally prefer the evidence of Craig to that of Darin. Ms Harris observed that Darin's wife was not asked about this car door, nor was Jayden or brother Paul.
2. This counterclaim item succeeds.

1. Ms Harris (Closing Submissions, paragraphs 735-738) stated that the plaintiffs deny liability relative to these items on the basis of abandonment and the expiry of the limitation period. For the same reason that I did not accept the assertion of abandonment relative to the green Holden HQ, I reject this claim. Likewise, since the claim is one in detinue, the Limitation of Actions Act defence fails.
2. This item of the counterclaim succeeds.

1. Paragraph 129 of the latest version of the defendants' Defence and Counterclaim alleged:

"The [plaintiff] Partnership has retained the milk income derived from the milking of the [plaintiff] Partnership and the [defendant] Company's intermingled dairy herds on 31 October 2018 and 1 November 2018."

1. According to the particulars, the income in question was $3,550.84, for which, according to paragraph 130 of the Defence and Counterclaim, the plaintiffs were liable to pay the company 50 per cent. Ms Harris (Closing Submissions, paragraph 279) said it was not in dispute that "each month each JV partner received 50% of the milk cheque." She said the issue on the counterclaim was:

"whether the [plaintiff] Partnership was entitled to withhold 50% of the milk cheque for 1 November 2018, for the milk made by the cows overnight from 31 October 2018." (Closing Submissions, paragraph 280)

"The [plaintiff] Partnership claimed entitlement to withhold that 50% because the [defendant] Company received 50% of the milk cheque on day 1 of the JV for milk that the cows had generated overnight of 31 October 2011."

1. She conceded that this was not a matter discussed or negotiated, but said it was:

"capable of being implied to give efficacy and is a fair term to give effect to the benefit the [defendant] Company had received. Alternatively, the [defendant] Company would also be unjustly enriched. The Partnership accepts that if those legal defences are not accepted by the Court, then the Defendants would succeed in their counterclaim in respect of the milk cheque." (Closing Submissions, paragraph 282)

1. Mr O'Haire (reply submissions, paragraph 75) noted that neither of those defences was pleaded by the plaintiffs. Further, as I have already observed, whilst the statement of claim in its prayers for relief seeks an accounting of joint venture expenses, it does not seek an accounting for joint venture income. In those circumstances, this counterclaim item succeeds.

1. I will direct the parties to bring in short minutes to give effect to these reasons.

1. I have heard no submissions on the question of costs, and so I will reserve them.

I certify that these 144 pages are a true copy of the judgment of his Honour Judge Macnamara delivered on 15 April 2025.