Brown v King

Procedural background

1. In the Common Law Division, Mr King moved on a statement of claim seeking judgment in Canadian dollars and alternatively Australian dollars based on the non-repayment of sums advanced by him to Mr and Mrs Brown secured by a mortgage over land owned by them on which they operated a vineyard. Further, the loan was guaranteed by Riverpines, of which Mr and Mrs Brown were the shareholders and directors, and Riverpines granted a "security interest" over its present and after-acquired property (cl 8 and item 2 of Schedule 3), which was registered under the Personal Property Securities Act 2009 (Cth).
2. The loan was mostly not repaid. The primary judge recorded at [2] that on 17 April 2020 Mr King had appointed a receiver, Mr Pleash of Hall Chadwick, to Riverpines, and that on 11 November Mr Pleash was also appointed the receiver of the property, which Mr and Mrs Brown had not vacated. The former appointment was by deed poll dated 17 April 2020 pursuant to the security interest granted by Riverpines over its personal property, and the latter was pursuant to the mortgage granted by Mr and Mrs Brown.
3. On 29 July 2020, on Mr King's application for summary judgment, Davies J gave judgment for possession of the land, finding very substantial indebtedness on the part of Mr and Mrs Brown and that none of the matters raised in the defence was an answer to a claim for possession, although they might give rise to a basis for an accounting: King v Brown [2020] NSWSC 1010. No appeal has been brought from those orders.
4. The primary judge recorded at [2] that there was a dispute as to when Mr King took possession of the land, but that there no was issue that Mr and Mrs Brown vacated by February 2021, shortly before the Sheriff was to evict them. As noted above, the land and the business were sold by the receiver, with completion occurring in August 2021.
5. Left outstanding were Mr King's claim in debt and Mr and Mrs Brown's cross-claim seeking relief based on a wide range of claims, partly directed to the conduct of the receiver appointed by Mr King. This was heard by the primary judge over three days, who thereafter promptly produced comprehensive reasons for judgment from which this appeal has been brought. In order to address the first ground of appeal, it is necessary to explain in some detail the course of the trial.

The course of the trial

1. The hearing before the primary judge occupied parts or all of Tuesday 27 April, Tuesday 25 May and Tuesday 20 July 2021. It is necessary to describe what occurred, in part because of some unusual features of the trial, but mostly because at the forefront of the grounds of appeal were complaints that Mr and Mrs Brown had been denied procedural fairness.
2. The morning of the first day was occupied by the tender of the Court book and the documents upon which Mr Brown relied. Shortly after the morning adjournment, there was the following exchange (Tcpt, p 22): "HER HONOUR: Now there were various affidavits which have been received. I don't understand that you seek to cross-examine Mr Brown, or there has been no application for Mr King to be cross-examined. NEWTON: That's correct. HER HONOUR: So we are at the stage then of moving to the submissions? NEWTON: Yes."
3. Early in counsel's address, counsel asked whether her Honour would prefer him to pre-empt those of the issues raised in Mr Brown's cross-claim, to the extent he was able to do so, before Mr Brown was called upon. Her Honour replied (Tcpt, p 23): "HER HONOUR: I think it would be helpful if he understands the totality of your case so that he can have an opportunity to respond to all of it. It might just simplify the process for him given that he is unrepresented. Is that convenient to you Mr Brown? FIRST DEFENDANT: Yes, your Honour."
4. The hearing continued on that basis. Before lunch, counsel explained the basis of Mr King's claim, and then turned, after the lunch adjournment, to the cross-claim. Her Honour enquired as to the unusual course taken in the litigation, whereby the mortgagee had been placed in possession prior to determining the indebtedness of the defendants: Tcpt, p 70. There was the following exchange, dealing with the orders sought by the plaintiff: "HER HONOUR: And there is no reference here to any accounting after the sale of the property. NEWTON: No. HER HONOUR: Does that need to be dealt [with] in the Court's orders? NEWTON: No, your Honour. The plaintiff, as mortgagee in possession, has an obligation to provide [an] accounting after it has completed the sale of the property. As mortgagee in possession it doesn't have an obligation now to do it but it is an obligation that it will have in the future. HER HONOUR: What does that mean, in practical terms? Could the judgment in total be enforced against Mr and Mrs Brown prior to the sale? NEWTON: Yes. HER HONOUR: With the result that if and when the property was sold there would have been accounting then? NEWTON: Yes. HER HONOUR: And if the property was not sold then in order to deal with the situation that Mr and Mrs Brown would be left in they would have to take some further proceedings to presumably force the sale? NEWTON: Yes. If they considered there had been some default by Mr King to [effect] the sale."
5. The balance of the day was occupied by exchanges between her Honour, Mr Newton and Mr Brown concerning the indebtedness, which identified that there was a relatively small difference between the parties. The matter was stood over on the basis that the hearing would be completed on the second day.
6. At the commencement of the second day, a defence to the amended cross-claim was filed and counsel explained that it had also been verified by Mr Pleash, the receiver. Counsel said: "Mr Pleash is the receiver. He has not been joined to these proceedings in his personal capacity, or, in fact, any capacity, and as was raised on the last occasion, the second cross-defendant is identified as Hall Chadwick, which is not an entity [that is] capable of being sued. Nevertheless, we have taken the step of Mr Pleash verifying this pleading because allegations are made that relate to his receivership."
7. After hearing at some length from Mr Brown concerning the indebtedness, Mr Brown introduced his submission that the Commonwealth Bank would never have taken the steps that Mr King took and said that he had some video and photographs on which he sought to rely: Tcpt, p 101. There was a short adjournment to permit Mr King to tell counsel what the evidence was, her Honour stating: "[T]he time for leading evidence has finished. You have had that opportunity and now we are at the point of receiving your submissions so if there is even further evidence you want to lead, you will have to make an application to again reopen your evidentiary case."
8. Mr Brown then addressed, by reference to a spreadsheet, his claim that the receiver sold some 1,666 bottles to Mr King at $3 per bottle, which Mr Brown said was at a substantial undervalue - he said the total should have been $431,305, rather than the $66,000 which Mr King paid. There was the following exchange (Tcpt, p 112): "HER HONOUR: Somewhere in the evidence you say that there is a document created by the receiver which confirms what appears on this page? FIRST DEFENDANT: I say yes. It was prepared from that document. HER HONOUR: All right. I am asking you this question because, as I keep reminding you, the Court has to proceed on the evidence. FIRST DEFENDANT: Right. HER HONOUR: You say somewhere in here there is evidence of this sale at $3 a bottle to Mr King. You need to draw my attention to where that is."
9. Mr Brown then turned to his claim that the effect of the appointment of the receiver was that attempts to sell the land for some $4 million were frustrated, resulting in the sale of the land at a substantial undervalue. Shortly before lunchtime, there was the following exchange (Tcpt, p 118): "FIRST DEFENDANT: There were others. Mr King was present at two discussions. We got a deposit, actually, from one of those. It didn't fall apart for any reason of mine or Mr King's; it fell apart with a dispute between the purchaser and the real estate agent. But the one that hurt us the most was the one that Mr King rejected. We had an extremely good offer. I don't have the details because most of the stuff is done over the phone or in through the real estate agents and I tried to get John - what was his name, the real estate agent. John, the real estate agent, the guy came up [from] North Sydney. I tried to get his statement about it because he was affected by the case as well but we couldn't get in touch with him. We only just got his name in the last couple of days. Mr King turned it down flat because it wasn't a cash offer and the guy offered $5 million and to purchase all our wine and we were only selling at that time about 25% of our grapes as wine. He was a Chinese purchaser. He was going to put a million dollars down, pay a million dollars a year. But in addition to that he was going to fund a design that I had done of the Hunter Eco Resort.He was going to fund that as well. HER HONOUR: Is any of this dealt with in your evidence? FIRST DEFENDANT: No, it is not in my affidavit, your Honour. HER HONOUR: You can't give evidence from the Bar table, Mr Brown. FIRST DEFENDANT: Yeah. As I mentioned, we only just got the gentleman's name yesterday, that's the real estate agent that bought this particular- HER HONOUR: Thank you, I just need to stop you. I am reminded that because of the listing which was due to start at 9.30 today, we are due to adjourn for lunch at 12.30 which means that we have to resume at 1.30 not 2."
10. After lunch, Mr Brown was sworn in. He adduced evidence of the videos and photographs, and he briefly explained the provenance of the videos. There followed this exchange while Mr Brown was giving evidence (Tcpt, p 122): "HER HONOUR: Was there any evidence you wanted to give about- FIRST DEFENDANT: Yes, I want to say - and I have documentation where it's referred to in the evidence, that that's an entirely disease-free vineyard. It was Mr Mercer and Mr Napper [the viticulture and vineyard managers appointed by Mr Pleash] and Mr King's appraiser, spent between three and four hours in the vineyard, looking at every aspect while estimating the value of the vineyard, and reported back that they had found no disease. HER HONOUR: All right. Thank you. That's your evidence? Thank you. FIRST DEFENDANT: That's the evidence. HER HONOUR: Do you want to move on-- FIRST DEFENDANT: Just for that part. HER HONOUR: Do you want to move on- NEWTON: I object to that evidence, your Honour."
11. Counsel objected to the evidence on the basis that there was no possible way he could test it. He said that he did not have a reasonable opportunity to test that the vineyard was disease free when the video was recorded, or that Messrs Napper, Mercer and King had inspected the premises and satisfied themselves that the vineyard was disease free. In response, Mr Brown said that he had a document referring to the vineyard being disease free, which was one of the documents supplied earlier that morning (Tcpt, p 123). Ultimately, her Honour ruled that she was not going to receive the testimonial evidence: Tcpt, p 126.
12. The transcript recorded Mr Brown then seeking to tender further photographs, some of which were admitted, others rejected. Mr Brown then referred to email exchanges which had not been served, and in answer to the judge's inquiry, confirmed that he was making an application for adjournment to put on an affidavit and to give Mr King an opportunity to meet the new case. That was opposed although, during the course of argument, Mrs Brown appears to have suffered a medical incident and advised that she had been told that she should go to the Emergency Department. Her Honour granted a short adjournment which was not opposed. Her Honour confirmed to Mr Brown when the adjournment was granted, that "you haven't completed the evidence you were giving. And I haven't ruled on your application for adjournment so that you can lead further evidence. I am not inclined to grant that application. I think it is just too late": Tcpt, p 136. However, her Honour advised Mr Brown that he should reduce to writing the further evidence he wanted to adduce and also provide a written outline of submissions within 14 days. The matter was stood over to 20 July 2021.
13. The third day of the hearing, 20 July 2021, took place with both sides appearing by audio-visual link. Mr Brown sought to read two affidavits which appear to have been prepared and supplied outside the time indicated by her Honour, although nonetheless some weeks beforehand. Mr Newton had a series of objections which had not been communicated to Mr Brown. Her Honour was politely critical of that approach, but counsel proposed the following course (Tcpt, p 139): "I think the most efficient way is to treat the affidavits, the other affidavits, as being read by Mr Brown and treat the objections as matters of submissions and ultimately your Honour will deal with that when making the final determination and give to those parts of affidavits the weight that should be given having regard to the objections."
14. Contrary to that suggestion, the next 20 pages of transcript were devoted to objections, with her Honour rejecting some parts of the affidavits, and letting others into evidence on the basis proposed by Mr Newton. The plaintiff sought to read a two page affidavit of Mr Pleash which responded to Mr Brown's evidence, principally by annexing documents from the company's records: Tcpt, p 162. Eventually Mr Newton confirmed that his case was closed. Her Honour said, "That would take us back to the submissions which you wish to make, Mr Brown, … unless you want to agitate an application for leave to lead even further evidence. Do you want to do that?" (Tcpt, p 168). Mr Brown made that application which was refused. Her Honour then said, "Now is your opportunity to make further submissions", and Mr Brown proceeded to do so, with relatively few interruptions from her Honour. Those submissions continued until Tcpt, p 186, when in response to her Honour's question, "Was there anything else, Mr Brown", Mr Brown responded, "No, I think that just about wraps me up your Honour". Mr Newton addressed in reply and the hearing was completed at 3.33pm with judgment being reserved.

Application to adduce further evidence

1. On appeal, Mr Brown sought to adduce a suite of evidence which had not been tendered at trial. This was opposed on the basis that the requisite "special grounds" in s 75A(8) of the Supreme Court Act 1970 (NSW) had not been made out, all of it having been evidence available to Mr Brown at first instance. The respondent's stance was plain on the face of the short (11 page) written submissions filed on 1 December 2022 to which Mr Brown supplied an elaborate (34 page) response.
2. At the outset of the hearing of the appeal, Mr Brown was directed to this three times (CA Tcpt, pp 2(6), 4(19) and 4(45)). On the third occasion the presiding judge said, "I thought that I had suggested that perhaps the logical place to start was your motion to adduce further evidence. But if you want to deal with that later in your submissions, that's a matter for you." Towards the conclusion of Mr Brown's oral submissions in chief, after he had addressed each ground of appeal, her Honour drew Mr Brown's attention to the issue concerning further evidence: at CA Tcpt, p 51(3). Twice thereafter Mr Brown was directed to the respondent's proposition that none of the material he now sought to adduce was material which could not have been tendered at trial. On neither occasion did Mr Brown answer the question in a meaningful way. He said: "I've got fresh evidence on the IP, the trademarks, on the ASIC. I've got expanded evidence on the Golden Auna, which I will find on the wines. I've got expanded evidence on the value of the wines that were sold to Mr King. And, I'll just have a look, I've got expanded evidence on all the sales contracts. We didn't have a chance to go through them all. There are four of them. I went to China at Mr King's insistence, which is in the evidence, to meet with the prospective - that - that customer, that potential purchaser was a multi-billionaire. He would have purchased the property. But COVID stopped him. I was there until December 23, 2019, and travel restrictions came in February, when COVID broke out."
3. The second exchange was as follows: "WARD P: … [Y]ou'll see that the respondent's position is that exceptional circumstances have not been demonstrated by you for evidence to be adduced that could have been given at the earlier hearing. Do you want to identify what you say are the exceptional circumstances? APPELLANT: Yes. Schmidt J misinterpreted or misrepresented evidence in the - as regard to the deterioration of the vineyard, took the unsworn testimony of the new managers and the new vineyard manager. And basically blamed the condition of the vineyard on us. And that there was no deterioration. Not even recognising, I think that there were two appraisals, and that was in the second one, six months later, where the vineyard had been totally trashed. We think that's a totally unreasonable verdict, based on a false understanding of what the evidence was. WARD P: I see. APPELLANT: Also she's dismissed all our corporate records, our financial records, which are printed directly from an online Xero accounting company. And - and as I pointed out, and I haven't pointed out there, it's in addition to a PhD in engineering, I have a first year of a masters of business administration from a reputable university in Canada. And I have not just audited, but I have passed the exams for finance and accounting and business administration in those. And I think I'm quite qualified to put together those reports that come from the accounting. But you can't mess around with a Xero online accounting program. It just - you know, I mean, you probably could, but what would be the point? And I think that she - she has left the impression, if not outright said, that those documents cannot be trusted. We cannot be trusted. And I just don't understand, you know, why we would bother to try and do that. I mean, those - those accounting records - and a lot of those records came, came from the administrator, the receiver, not from us. I tried to use his documents out of his affidavit as much as I possibly could. And the valuation - she questioned the valuation of the wines. That's a document that the receiver produced, not me. So I'm basing a lot of it on unreasonable inference on faulty consideration and unreasonable verdict, unreasonable justice."
4. The application falls to be determined by reference to the written submissions in support (especially, [8]-[13] on the 34 page "Amended response to respondent submission of 1 December 2022" filed on 12 February 2023 and the documents themselves). I have also had regard to the Common Law Division file. I have taken that course because Mr and Mrs Brown are unrepresented, and I wanted to know if there was something which on its face appeared materially to alter the evidentiary position.
5. Some of those documents sought to be tendered by Mr Brown are clearer copies of documents which were in evidence. Others are affidavits by witnesses of primary fact sworn after the trial. By way of example, there is an affidavit of Mr McCraw made in November 2021 who gives evidence confirming that he witnessed the execution of a contract between Mr and Mrs Brown and their company relating to Hunter Eco Resort. There are also business records which not only are not demonstrated to have been unavailable to Mr Brown at trial, but are of minimal weight. In large measure, Mr Brown correctly described the evidence he sought to adduce in his descriptions reproduced above. It is clear on the face of the documents that the evidence was reasonably available to him to adduce at trial. Mr Brown has not submitted to the contrary.
6. In oral submissions, Mr Brown said that he had not appreciated that the documents upon which he relied would be rejected by the judge. Whether that is to be understood as a reference to them being ruled inadmissible or not found to sustain a finding for which he contended (or both) is not to the point: this falls short of establishing special grounds. The application to adduce further evidence, insofar as it extends to evidence not admitted at trial, should be dismissed.

Procedural fairness (grounds 1, 2 and 3)

1. Mr Brown addressed these grounds first, a course which accords with Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2] and [117].
2. Mr Brown complained that the primary judge "directed the plaintiff's lawyer to present the plaintiff's case", and then to continue through the defendants' evidence. He said that he objected to the plaintiff's lawyer dissecting his submissions, evidence and annexures, which were taken out of context. He said that during the course of his submissions, "Justice Schmidt adjourned the hearing stating words to the effect, 'there will be no more hearings, all further evidence must be submitted in writing'". In his oral submissions in this Court, Mr Brown said at CA Tcpt, p 5(20): "… we did not feel that we got a fair hearing. What I wanted to say is we repeatedly objected to the lack of opportunity to present [our] defence. When we did have the opportunity to [present] the - the defence, we were up to argument 12 of 35 when the Court was adjourned. And we were told there'd be no further hearing and that we were to submit in writing our other points."
3. The gravamen of this complaint is that the appellants were not permitted to present their case. Despite the length of his written submissions, Mr Brown made no attempt to give transcript references to the events of which he complains. It is for that reason that I have read, and summarised, the entirety of the transcript. It contradicts Mr Brown's submissions.
4. Mr Brown was explicitly given an opportunity to be heard as to the course proposed by her Honour, that counsel would identify his response to the cross-claim before hearing from Mr and Mrs Brown. The transcript records Mr Brown agreeing to that course.
5. The second day of the hearing ended early, owing to Mrs Brown's medical event. The third day of the hearing included time for Mr Brown to make full submissions, which ended only after he told her Honour that he had said all he wished to say.
6. Mr Brown's written submissions on the appeal include the following: "My request to call witnesses to validate the evidence or call Mr King as a witness was immediately denied by Justice Schmidt with comments about 'ambushing'. As every law enforcement officer knows, 'you cannot ambush a witness that is telling the truth.'"
7. Mr Brown reiterated this in oral address. But the transcript does not disclose anything like this occurring. First, so far as the transcript records, there was no application made by Mr Brown to cross-examine Mr King. Secondly, not only was there no application, but the primary judge explicitly raised the fact that, as she understood it, neither side had applied to cross-examine the witnesses called by the other side. Counsel confirmed that was his understanding. The transcript does not record Mr Brown making any response.
8. It is true that there were references to "ambushing" by the primary judge. In a submission supplied after the hearing, Mr Brown identified this at Tcpt, pp 161-163. The attachment to the email labelled "D2 J 161-163 Ambush comment.pdf" was in fact pp 47-101 of the transcript. Page 101 of the transcript contains a reference to "ambush". So too does p 160 of the transcript. It is not quite clear to me to which passage Mr Brown refers, and so I shall deal with both.
9. Just before the morning adjournment on the second day of the trial, when the evidence had closed and the parties were making submissions, Mr Brown referred to letters and emails which were not in evidence. Her Honour then said (Tcpt, p 101): "Before we go any further I think you need to tell Mr Newell [scil Newton] what that is, what that evidence is, and we should deal with the question of whether or not you should have leave to lead more evidence. Are you in a position to have that discussion with Mr [Newton]? If you are I will take a short adjournment so that can happen. I do that because the rules of court and the processes of the Court are all designed to ensure that parties do not litigate with each other by ambush or surprise."
10. Mr Brown was then permitted to tender certain photographs. As stated above, that hearing finished unexpectedly because of Mrs Brown's medical incident, but Mr Brown had the opportunity to serve evidence before the third day of the hearing in July.
11. The second reference to "ambush" occurred on the third day of the trial, during the course of resolving objections to an affidavit affirmed by Mr Wayne Riley (a man who had done contract work on the vineyard). There was the following exchange concerning paragraph 22 of his affidavit, which expressed an opinion for the decline in the quality of the vines after November 2020, namely, a combination of incorrect trimming, relying on contractors from other vineyards and not spraying at the right time. The paragraph was rejected. (The ruling was not subject to appeal, but it was plainly correct.) In the course of argument, the primary judge explained to Mr Brown: "The Court requires that litigation not be conducted by ambush or surprise and, so, people have to provide affidavits which discloses the evidence which they are called to give. The Court does not permit, except with leave, oral evidence to be called, particularly from people who seek to give evidence of expertise. Now, very late in these proceedings, you sought to call this evidence and without objection it has been led. Even if called orally and Mr [Riley] purported to give evidence like this, it would be objectionable. I understand that it's difficult, Mr Brown, but the law applies equally to all those who appear before the Court, whether represented or not. I don't propose to receive para 22."
12. Neither of the references to "ambush" reflect what Mr Brown asserted. The result is to confirm the conclusion that Mr Brown has a tendency to make serious allegations about the conduct of a trial, but without subjecting himself to the discipline of referring to the transcript to ensure his recollection is accurate.
13. In the submission supplied two days after judgment was reserved, contrary to the limited grant of leave, which was explicitly confined to the provision of transcript references, Mr Brown said the following: "This reference was not specifically about Wayne Riley's affidavit. The statement was made in discussion ensuing after our testimony that we were not involved in [any way] with Mr King's buy out of the CBA's mortgage and the Appellant's contention [that] the CBA would have auctioned the property at its peak presentation and worked with us to ensure the vineyard was not trashed. The vineyard was operationally breaking even and in fact made a $25 thousand + operational profit from April to October 2021 see attached annexure AE-E page 11. Mr Newell that Justice Schmidt refers to is actually Mr Newton. We took Justice Schmidt's comments to mean we were not going to have the opportunity to dispute the plaintiff's testimony with further evidence or cross-examination."
14. The gravamen of that submission is incorrect. The reference is, self-evidently, part of an explanation for her Honour accepting the objection to paragraph 22 of the affidavit. The issue is not how Mr and Mrs Brown now say they understood what her Honour said, but whether an objective bystander might reasonably apprehend that the primary judge might not bring an impartial mind to resolving the dispute. And in any event, it is plain from the transcript that Mr Brown did not at the time believe that there was no prospect of adducing further evidence, because he repeatedly applied to do just that (Tcpt, p 161, "We wish to put on another affidavit concerning Mr Pleash's evidence") and then at Tcpt, p 168 her Honour asked Mr Brown whether he wanted "to agitate an application for leave to lead even further evidence" which he did (this was in anticipation of a witness who would give evidence of the domain names and websites).
15. Finally, towards the end of his oral submissions in this Court, Mr Brown asserted that he had been denied the opportunity to cross-examine Mr King. He was unable to point to where this occurred, and was permitted to supply a note identifying in the transcript where it did. Mr Brown's submissions contained a heading "Appellant's Suggestion Mr. King be sworn in" and it is true that, when dealing with an objection to his own evidence based on the impossibility of Mr King being able to deal with it, Mr Brown said "if Mr King would like to swear himself in, you know, he can either deny or confirm that that's the case". The primary judge responded, "That's not a basis on which that objection can be dealt with" (Tcpt, p 123). There is nothing untoward about that exchange. More importantly, there is nothing in the transcript to which Mr Brown has pointed, or which I, reviewing it independently, have found, that denied Mr Brown the ability to cross-examine a deponent. He never applied to do so.
16. There is a further reason for addressing these matters. I was at first concerned that the primary judge expressed views that Mr Brown was not a reliable witness, in circumstances where he was not cross-examined and in very large measure was an advocate rather than a witness. Her Honour said at [106]-[108]: "While what remained to be resolved in relation to Mr King's case depended on the proper construction of documents, the onus lies on Mr and Mrs Brown and Riverpines to establish an evidentiary basis for the orders which they seek. They relied on affidavits sworn by Mr Brown, numerous documents, including documents he had created, as well as affidavits sworn by others, to meet that onus. Despite those affidavits corroborating some aspects of Mr Brown's evidence, I came to have reservations about his credibility and the reliability of his evidence. I have concluded that Mr Brown's evidence must be approached with some caution and on issues which must be determined, may not be accepted without corroboration."
17. However, although I have only seen Mr Brown making submissions, I have formed the view that he will plausibly and at times forcefully say things which are contrary to the documents on which he relies. The misreadings and misapprehension of the transcript referred to above illustrate this. That is not to imply that Mr Brown is knowingly making untrue statements. It is easy to underestimate the pressure that an unrepresented litigant aged 76 faces in advancing an appeal. It is much more likely that Mr Brown does not fully understand the legal effect of many documents, and reads them selectively with a view to relying upon them to support an aspect of his case.
18. But whatever be the explanation for the incorrect statements Mr Brown makes, I see no error in the cautious attitude expressed by her Honour. Ultimately, this was dispositive of a number of Mr Brown's claims, which her Honour found had not been established on the evidence.
19. Mr Brown also included within this ground a complaint that the primary judge should be "overturned because of untruthfulness, misparaphrasing and incorrectly construing evidence". Those matters are addressed in the remaining grounds of appeal. There is a difficulty in identifying the remaining grounds of appeal because Mr Brown's amended notice of appeal has two headings "Grounds of Appeal". The notice has numerous pages which are repetitions of earlier pages, and the paragraph numbering is haphazard. I shall adopt the same course adopted by Mr Brown in oral address. He treated grounds 4, 5, 6 and 7 as being a complaint about the way his documentary and affidavit evidence was treated. Ground 8 was based on the mortgage, ground 9 on the ownership of the grapes and wine inventory, ground 10 on the calculations of indebtedness, ground 11 on his claim for wages, ground 12 on the claim for equipment and machinery, ground 13 on the claim for domain names and intellectual property, ground 14 on the sale price achieved by the receiver for the sale of the vineyard, ground 15 on Golden Auna wines, and ground 16 was a complaint about the way the primary judge decided the case based on the pleadings.

Treatment of evidence (grounds 4, 5, 6 and 7)

1. In part this overlapped with the complaints about procedural fairness. Thus his assertion that his request to call Mr King "was immediately denied by Justice Schmidt with comments about 'ambushing'", which is not what occurred, was part of ground 4. Otherwise, these grounds amount to a generalised complaint that the findings for which Mr Brown contended were not made based on the evidence he relied upon. In part this turns on the way the case had been pleaded, and in part upon the fact that the documents upon which Mr Brown relied do not in fact support the proposition for which he contends.
2. The aspect of these grounds which was elaborated orally at greatest length concerned two valuation reports. Mr Brown was critical of the finding by the primary judge that he had failed to establish that the condition of the property depreciated after October 2020. A deal of the photographic and video evidence which he sought to tender (some successfully, other parts unsuccessfully) was directed to this issue. In this Court, he pointed to two appraisals by the same valuer, one based on an inspection on 24 September 2020 which valued the property at $2,750,000 as at 6 October 2020 and made no mention of disease. The other was based on an inspection of 21 March 2021 and valued the property at $2,350,000. The latter report stated: "We note that since the last valuation dated September 2020 there has been a report completed and found that the current vine having Downy mildew throughout which will and has affected yield loss and predominantly all is not of quality and therefore we have not attributed any value to the trellised vine within our calculations [sic]."
3. Mr Brown maintained in oral submissions that the primary judge had failed to appreciate his point that there were two valuations, one just before the receiver took possession of the land and one six months later, with a $400,000 diminution in value attributable in very large measure to the Downy mildew which affected the vines. In fact, he told the Court that he had only discovered a few weeks before the appeal was heard that there were two valuations: CA Tcpt, p 9(5). Mr Brown relied on this to support his contention that the receiver had poorly maintained the property. He described his submission as follows at CA Tcpt, p 15(15): " … the vineyard was in pristine condition on October - in October and it was trashed by March and the appraiser dropped $320,000 off the appraisal value because of that and stated so, and - and her Honour has moved that to October and then blamed the state of the vineyard on my management and on our practices."
4. I do not think Mr Brown is correct. It is true that the two valuations are very similar in appearance (the latter is evidently an update of the former and has substantially the same format and photographs, although of course there is a different inspection date and valuation on the final page), and that if one did not read each carefully, one might conclude that they were multiple copies of the same document. However, the primary judge not only referred repeatedly to the latter report, but also referred to the October report at [191]. At [230] her Honour referred to "the valuations [plural] which Mr Pleash obtained".
5. The primary judge rejected this claim on the basis of an absence of independent expert evidence, as well as a scepticism of Mr Brown's evidence: at [199]. Her Honour also reiterated that Mr Pleash was not a party to the proceedings: at [202]. Her Honour proceeded on the basis that it was not possible to make findings of breach of duty against Mr Pleash. That did not disclose error. Mr Pleash was not a party, and that came about in the way described below when dealing with ground 16. Although Mr Pleash was a witness whose affidavit was read, Mr Brown did not cross-examine him so as to put the claimed breaches to him. Ultimately her Honour determined the case on the basis of Mr Brown failing to establish a case against Mr King, concluding at [203]: "But the evidence relied on did not establish a basis on which it could be concluded that any duty which Mr and Mrs Brown were owed by Mr King has been breached by his refusal to remove the receiver. Nor have they established circumstances warranting the receiver's removal."
6. It is best to deal immediately with the substance of Mr Brown's complaints about Mr Pleash.

Pleadings from the tabled short minutes of order (ground 16)

1. Mr Brown complained that, "Justice Schmidt repeatedly stated in her judgment with words to the effect that we, 'did not make claims' or 'did not amend our statement of claim'".
2. Mr Brown is correct to state that much of his complaint, including those concerning the conduct of Mr Pleash, was resolved against him on the basis that it had not been pleaded. That occurred in the following way.
3. Mr and Mrs Brown's cross-claim purported to join as the second cross-defendant "Hall Chadwick". Her Honour accepted Mr King's submissions that Hall Chadwick was a business name, not a legal person capable of being sued. No attention appears to have been given at any time to UCPR rr 7.20-7.22 which deals with cases where a plaintiff has sued a business name. Were that all that occurred, there would be greater force in Mr Brown's submissions.
4. However, Mr Pleash was supplied as a witness by Mr King, whose position was that the receiver was not a party to the litigation, but that if Mr Pleash were sued personally, Mr King's solicitors had instructions to accept service.
5. It is easy to see how that stance might be confusing to many unrepresented litigants. However, it was raised throughout the hearing.
6. In opening the case, counsel for Mr King said (Tcpt, p 43): "The cross-claim simply refers to the second cross-defendant as Hall Chadwick. That is not a legal person capable of being sued and it was pleaded that in the cross-claim with all the strike through amendments and we have pleaded that as an issue and it has never been addressed by Mr and Mrs Brown."
7. Mr Brown contended (Tcpt, p 176) that a concession had been made concerning Mr Pleash in the hearings concerning a writ of possession. Counsel for Mr King disputed that. Evidently her Honour obtained documents relating to that hearing, for Tcpt, p 192 records: "HER HONOUR: Just one moment. Mr Collins appeared on 2 October 2020 before Davies J at a time when there was no cross-claim and there was a discussion about a cross-claim being filed and his Honour saying to Mr Brown that he was going to take action in relation to the wine, he would have to make a decision about whether the claim was to be made against Mr King or the receivers or both of them because Mr King may not be liable for what the receivers [did] and the matter was adjourned. Then it came before Davies J on 13 November when Mr Collins appeared again and he had filed a cross-claim and Mr Collins mentioned the appearance for the second cross-defendant, which is Hall Chadwick, and there were some short minutes which proposed that defences be filed. Then, on 5 February 2021, when the matter came again before Davies J, Mr Collins said - his Honour asked what the position with the receivers was and Mr Collins said, 'The defence to the amended cross-claim, including a verifying affidavit from the receiver, Mr Pleash, was drafted on the basis that Hall Chadwick is not an entity that can be sued; that is addressed at the beginning of the defence,' and he said, 'My instructions are that if it was necessary that my instructors would appear for the receiver if he was ultimately to be joined but that's the way we have dealt with it to date, so I don't formally appear for the receiver today.' His Honour said, 'I see. So the receiver is an individual who has a registered business name of Hall Chadwick. Is that right?' Mr Collins said, 'Yes. I believe Hall Chadwick is a company but certainly the individual is Mr Pleash and Hall Chadwick is a business name.' Mr Brown said, 'We are suing both Hall Chadwick and Mr Pleash.' His Honour noted that the amended statement of cross-claim doesn't identify Hall Chadwick Pty Ltd, just Hall Chadwick and that, 'You can't sue a business name. You either sue a company or a person.' His Honour said, 'It sounds as if, clearly, the party ought to be amended so that it refers to Mr Pleash.' His Honour said, 'If you want orders to be made against Mr Pleash, at some time, he is going to have to become the party to what you are claiming.' Mr Brown said, 'I am prepared to make that change, if it's able to be done.' There was then a discussion about what the consequence might be. But as I followed, despite that Mr Pleash has never been made a party." (Emphasis added)
8. There is nothing to suggest that any aspect of the procedural history described by her Honour was inaccurate.
9. Mr and Mrs Brown never produced a document in these proceedings naming Mr Pleash. They maintained a claim against "Hall Chadwick" (which was the second cross-defendant) in circumstances where they had been told repeatedly and unequivocally that Hall Chadwick was not a legal person, that they needed to sue Mr Pleash by name if they wished to do so, and indeed that Mr King's solicitors had instructions to accept service. In those circumstances, which are a little unusual, there was no error in the primary judge proceeding on the basis that Mr and Mrs Brown must be taken to have not sued Mr Pleash. (Indeed, any other conclusion would face a further problem, because neither Mr Pleash nor his firm are parties to this appeal.)
10. Mr Brown contends that it was sufficient for him to file proposed short minutes of order. The difficulty he faces is that Mr King's claim in debt was established by a very simple pleading, which was accompanied by a document identifying the orders he sought. Mr and Mrs Brown wished to advance a number of claims of breach of duty, raising contested facts. While a court will take steps to ensure that an unrepresented litigant is not unduly disadvantaged by the absence of legal assistance in formulating his or her case, there are limits to what a court can do. Here Mr and Mrs Brown were told that if they wished to make allegations of breach of duty against the receiver, they needed to sue him and articulate what those breaches were. They were told that they needed to amend their cross-claim, but that the plaintiff's lawyers had instructions to accept service. Mr and Mrs Brown may not have understood this, although it was said clearly and with a view to their understanding it. But for whatever reason, they did not take the steps they had been told were necessary.
11. In those circumstances, there was no error in dismissing the claims based on breach of duty by the receiver.

Complaints about Memorandum no. AE720944 (ground 8)

1. Mr Brown's written submissions complained that he and his wife were not given a copy of memorandum no. AE720944 in the mortgage documents. He also submitted that the type size of the reference on the mortgage front page did not meet the minimum font requirement of "Arial 11 for a legal loan document according to the 'National Mortgage Form Design Specification'" published by the Australian Registrars' National Electronic Conveyancing Council. The oral submissions took the matter no further.
2. This ground is not made out. There is no dispute that each of Mr and Mrs Brown (and Mr King) personally filed the registrable mortgage dated 18 January 2016 which identified as the provisions of the mortgage both "Annexure A hereto" and "Memorandum no. AE720944" filed pursuant to s 80A of the Real Property Act 1900 (NSW). The Deed of Mortgage, which was also signed by Mr and Mrs Brown, states: "this Deed of Mortgage containing the agreements of the parties is comprised by this statutory form with this annexed summary and execution page and Memorandum No. AE720944, a copy of which the mortgagor acknowledges receiving."
3. It is true that the typeface of the reference to the memorandum on the registrable mortgage, while perfectly legible, is smaller than 11 point. It is also true that the reference appears to be in 10 or 11 point on Annexure A. The guidance issued by the Australian Registrars' National Electronic Conveyancing Council does not subvert the legal effect of the registration of the registrable instrument and the Deed, each of which Mr and Mrs Brown signed in person. What is more, the specification upon which Mr Brown relies is stated to be version 1.0 and was published in May 2016, which is after the mortgage and the Deed were executed. Further, each of Mr and Mrs Brown signed an acknowledgment stating that they had read "the Deed of Loan, mortgage and mortgage memorandum". Ground 8 should be rejected.

Ownership of the grapes and wine inventory (ground 9)

1. The first of two complaints of the sale of the wine inventory concerns its ownership. Mr Brown contends that the wine was owned personally by Mr and Mrs Brown trading as a partnership. He sought to rely upon a "Grape sales Contract" between Mr and Mrs Brown as partners and Riverpines, the effect of which was that the partners agreed to sell the entire annual harvest of the vineyard to Riverpines for $400,000. The term of the agreement is not plain on its face. The agreement states: "Breach of contract: Should Riverpines Vineyard Pty Ltd breach this agreement, it is within the Browns' exclusive right to cancel the Agreement, and undertake all and any means for redress of payments owed. All rights [to] grapes and wine made from unpaid grape deliveries remain the exclusive property of the Browns."
2. By letter dated 28 June 2021 to Mr King's solicitor, Mr and Mrs Brown asserted that Riverpines defaulted on payment for grapes harvested for the years 2008-2019. The letter also stated: "this contract has been defaulted for years 2010-2030" [sic]. The letter concluded: "This letter is a demand to: 1. Recognise GP & A Brown title to all any wines labelled Produced by: Ascella Organic Wine of Produced by: Ascella Wines, 2. Cease and desist on selling, licencing or using any wines labelled Produced by: Ascella Organic Wine of Produced by: Ascella Wines, 3. Immediately cease any communication to any company or warehouse purporting that Riverpines Vineyard Pty. Ltd. has title to any wines labelled Produced by: Ascella Organic Wine of Produced by: Ascella Wines, 4. Not interfere with GP & BA Brown in the execution of their rights for wines labelled, Produced by: Ascella Organic Wine of produced by Ascella Wines, 5. To make immediate compensation payment for any wine sold by Riverpines Vineyard Pty. Ltd. Please be advised if these demands are not satisfied within 5 days, every legal recourse will be undertaken to enforce the rights stated here-in. [sic]"
3. One strand of Mr Brown's submissions was that the effect of that letter was that he and Mrs Brown owned the wine which had been wrongly sold by the receiver. Mr Brown told this Court that the letter had not been tendered at first instance (so far as I can see, that seems to be correct).
4. This claim was addressed by the primary judge in some detail at [110]-[117]. "Mr and Mrs Brown are the sole directors and shareholders of Riverpines and until Mr Pleash's appointment, its controlling mind. In his first affidavit Mr Brown did not suggest that Riverpines did not own the wine produced with grapes they had grown, or that it had ever failed to make any payments due to them for the grapes, with the result that the wine belonged to [him] and Mrs Brown not Riverpines. Had that been the case, it could only have been the result of steps which Mr and Mrs Brown had taken, about which Mr Brown gave no evidence. This was a claim only belatedly raised in Mr Brown's third affidavit. To establish this claim Mr Brown relied on a grape sale agreement he, Mrs Brown and Riverpines had entered, after an earlier agreement with Tamburlaine wines had not been honoured. That agreement was certainly ambiguous, Mr King disputing that it provided for what Mr Brown claimed. Even accepting that it provided for Mr and Mrs Brown to sell all of the grapes which they produced each year to Riverpines, that it had always failed to pay them for grapes they had supplied, with the result that they owned all wine produced, was not established. That was contrary to what was pleaded in the amended defence on which Mr and Mrs Brown and Riverpines had relied before Davies J. It was also inconsistent with other evidence and aspects of the case Mr Brown pressed. At [15] of his judgment, Davies J noted that amongst the orders then sought were: 'Judgement that the receivers did not act in good faith concerning the assets of Riverpines Vineyard Pty Ltd and should: a. Desist in any action to seize the equipment belonging to GP & BA Brown, and; b. Review the sales' records of Riverpines Vineyard Pty Ltd to determine the true market value of the wine inventory/ seized.' Had Mr and Mrs Brown rather than Riverpines, truly owned the wine as they later claimed, this would not have been pleaded. Such ownership would have been reflected in documents. But that was not what the documents in evidence establish. Riverpines' 2018 annual report, for example, was annexed to Mr Pleash's affidavit. That was long before he became the receiver, at a time when Mr and Mrs Brown were entirely in control. Its trading and profit and loss statement for that year reflected that Riverpines then had opening stock worth $908,448, closing stock of $749,728, wine sales of $323,776 and a loss before income tax of $238,248, with differing figures for the preceding year, when it also suffered a loss. This was inconsistent with Mr Brown's evidence that it was he and Mrs Brown who owned all the wine ever produced, rather than Riverpines. It is possible that other documents, financial records or tax returns for example, might reflect that it was Mr and Mrs Brown who made income on the wine which they owned and sold before the receiver was appointed. But if they exist, they were not tendered. In his submissions Mr Brown referred to having had accounting advice but no evidence was called from the accountant, or an accounting expert, who could have explained what the records which were kept and the income tax returns which were filed revealed about how the business was operated and who, in the result, owned the wine. I am thus satisfied that Mr Brown and Mrs Brown's claimed ownership of the wine was not established."
5. In this Court, Mr Brown said that her Honour's reasoning was wrong. He relied upon the agreement between Mr and Mrs Brown and the company they owned and controlled without addressing the matters upon which her Honour relied, all of which pointed to the company owning, and selling, and accounting for the sale, of the wine inventory. In part, they sought to rely upon fresh evidence that the partnership "was active and filed income statements to the ATO" (to be clear, no taxation returns for Mr or Mrs Brown, or their partnership, or their company, or the trust which Mr Brown mentioned at one stage (Tcpt, p 43(8)) were tendered). In seeking to address the difficulty that the document relied upon was more than a decade old, they submitted: "though dated 2008, this is an annual harvest contract that does not expire if waived at any time as the transaction agreement would be by statutory time limits, as the terms and conditions restated as the same as the 11 year deed of assignment of the Growers Agreement attached as part of this agreement".
6. The ownership of the wine inventory is a question of fact. All of the documents, save for the two upon which Mr Brown relies, point to the wines being owned by the company. Further, Mr Brown's case is that the receiver immediately seized the wine inventory, and that Mr King thereupon purchased it at very low prices and then sold it at an average price of $21.50 per bottle. If so, it preceded the letter upon which Mr Brown relies, which is dated a few weeks before the third day of the trial. No error in her Honour's finding of fact, which accords with most of the documents and the inherent probabilities, has been made out.
7. The second aspect of this complaint is the claim that the sale was at a substantial undervalue. Mr Brown submitted at trial and maintains the submission in this Court that, by reference to the average price per bottle sold over the previous six months, the receiver's sale was at an undervalue of $552,061. Insofar as this is a complaint against the conduct of the receiver, it fails because the receiver was not joined.
8. Moreover, her Honour found at [204] that Mr and Mrs Brown had not established a basis for this claim. Her Honour relied on business records which were contrary to the wine being owned personally by Mr and Mrs Brown (including tax invoices under the name Ascella Organic Wines which used the ABN of Riverpines). Her Honour did not deal with the letter of demand, which purported to revest the wine in Mr and Mrs Brown, but that seems to be because it had not been tendered at trial. Ground 9 must be rejected.

Mortgage debt calculation (ground 10)

1. As noted at the outset, one aspect of this ground was established prior to the hearing. Mr Brown correctly contended that the judgment entered against the defendants disregarded the proceeds of sale in excess of $2,000,000 which were the subject of comment by Kirk JA and correction by the primary judge in her most recent judgment.
2. In oral submissions, Mr Brown complained that Mr King had bought out his previous mortgagee, the Commonwealth Bank of Australia and claimed that the bank would never have treated him in the way that Mr King had.
3. Mr Brown then turned to the calculation of indebtedness: "APPELLANT: The mortgage originally was written in Australian dollars with parenthesis around the Canadian dollars. Mr King has sued us and demanded payment in Canadian dollars and although he purchased the mortgage in Australian dollars in Australia, and the judge, of course, her Honour, has gone along with that. At the present time, there's an 8% difference, for example, and that's like 160 or $180,000. And at various times, it was $400,000 - so the difference. So at the time when the mortgage was made, it was almost par. That was the only time when Australia and the United States almost got to par. Well, maybe beyond par a little bit. So our contention is - and there's another - I go into this in a little greater detail in the - okay, at the moment I can't find it, but that's - that's the crux of appeal point 9 that the debt - the mortgage says that the debt is to be calculated in Australian - calculated and paid in Canadian dollars. It doesn't say calculated in Canadian dollars. It just said the mortgage debt, the interest is to be calculated and paid in Canadian dollars, and since it was an Australian dollar loan and paid out with no - no, you know, reference or consideration to us or even informing us, I don't see why suddenly we have to owe another $180,000 because her Honour ruled that it's a Canadian debt. It was an Australian debt when we took it out with the Commonwealth Bank of Australia, and again I hate to plug, you know, public interest, but it would literally mean any company could come into Australia, buy a debt from a bank, you know, in Australian dollars, and it wouldn't matter if they were US, UK or whatever, if they were speculating on currency and they - and the currency was favourable, the exchange rate, the debt to the person they bought the mortgage off would increase. So that is - that's that point. We believe BASTEN AJA: That doesn't matter. It could go either way surely. The question is whether it was a debt which should have been ordered to be repayable in Canadian dollars. APPELLANT: Yes. Well, repayable in Canadian dollars, but that doesn't mean calculated in Canadian dollars. See the debt - the - the debt instrument was Australian dollars, and so you calculate all the interest in Australian dollars. You don't work out what the Canadian dollar equivalent is and then calculate it in Canadian dollars, and say, 'Okay, you owe this much.'"
4. It is true that in a general sense Mr King "bought out" the existing loan denominated in Australian dollars between Mr and Mrs Brown and the Commonwealth Bank. However, it is quite plain from the documents that that was not an assignment of Mr and Mrs Brown's existing debt, but a new agreement between Mr and Mrs Brown and Mr King. A "Discharge Settlement Payout Figure Confirmation" on the bank's letterhead recorded receipt of $1,241,575.03 on 1 November 2016, and a deed of variation between Mr and Mrs Brown, Riverpines and Mr King of the same day recorded "Tranche 2" of "AUD$1,241,575.03 (CAD$1,260,198.63)" as a new component of the principal sum. Accordingly, the currency in which the principal and interest which Mr and Mrs Brown must repay is a question of construction of their agreement with Mr King.
5. The original deed of loan, dated 18 January 2016, provided that the Principal sum was $794,250.00 (CAD 750,000.00) at the drawdown date, the drawdown date being 26 August 2015 some six months prior. By a deed of variation, the principal sum was increased to "$1,057,555.00 (CAD1,000,000.00)". A second deed of variation increased the total principal sum to "$2,314,093.43 (CAD 2,342,756.00)".
6. Clause 1 of the Deed was headed "Definitions and Interpretations" and in cl 1(a)(i) stated, "the following expressions wherever occurring in this Deed shall, unless the context otherwise requires, mean: …". Clause 1(b)(v) was headed "Interpretation" and stated, relevantly, "in the interpretation of this Deed … [the] reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia".
7. Clause 5(c) of the second deed of variation provides: "Notwithstanding anything to the contrary, the principal sum will be repayable in Canadian funds": cl 5(c). It was this deed which was entered into on the day Mr King discharged the existing indebtedness to the Commonwealth Bank of Australia, and which incorporated new "Tranche 2" in the amount of that indebtedness, expressing the amount in both Australian and Canadian dollars.
8. The primary judge found at [88]-[89] that the effect of cl 5(c) was that the principal was to be repaid in Canadian dollars, but that cl 5(c) did not deal with interest, to which cl 1(b)(v) applied, with the effect that under the original deed and the first and second deeds of variation, the obligation to repay interest was in Australian dollars: at [87] and [90].
9. Mr Brown contends that the entirety of the judgment should be calculated in Australian dollars, notwithstanding cl 5(c). He says that Mr King bought out the mortgage from the Commonwealth Bank of Australia, and that mortgage secured an Australian dollar amount. He also says that Mr King lent money in Australia to be spent in Australian dollars.
10. Clause 1(b)(v) is a rule of interpretation which falls to be read together with the substantive provisions in the Deed and may be displaced where the context requires. That is to say, the interpretation provisions in cl 1(b) are subject to the same qualification that they are applicable "unless the context otherwise requires" as the definition provisions in cl 1(a) are, expressly. It is never necessary, in order to displace the definition or interpretation provision, explicitly to say "unless the context otherwise requires". That should be regarded as settled principle, as has been repeatedly held: Buresti v Beveridge (1998) 88 FCR 399 at 401; Transport Accident Commission v Treloar [1992] 1 VR 447 at 449; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [40]; Melrose Farm Pty Ltd v Milward [2008] WASCA 175 at [7] and [51]. Those decisions are on statutes, but the same principle applies to contracts. In Halford v Price (1960) 105 CLR 23; [1960] HCA 38, Fullagar J said at 33: "Neither in the case of a stature nor in the case of a contract or any other instrument is there any rule of law or of construction which requires us to apply a definition where to do so would be at variance with a context or with a general intent to be gathered from the whole of the instrument."
11. The same points have been made in relation to contracts in this Court in Perpetual Custodians Ltd (as custodian for Tamoran Pty Ltd as Trustee for Crivelli) v IOOF Investment Management Ltd [2013] NSWCA 231; 304 ALR 436 at [86] and Segelov v Ernst & Young Services Pty Ltd (2015) 89 NSWLR 431; [2015] NSWCA 156 at [101]. It appears that her Honour was not favoured with submissions on that point.
12. The second variation to the Deed of loan included cl 5(c), which provided "notwithstanding anything to the contrary, the principal sum will be repayable in Canadian funds". It might be thought, even without such a provision, that where the original principal was a precise $750,000 in Canadian dollars, increased to precisely $1,000,000, again in Canadian dollars, advanced by a Canadian lender, that that was always the intention. If it were not so, then the Canadian lender suffered the risk that he would not be fully repaid in the event that at the time of the repayment the Canadian dollar had appreciated as against the Australian dollar. That is to say, an obligation to repay the principal in Canadian dollars, which plainly enough was the currency by reference to which the original loan and the first variation were calculated - for how else were the precise amounts in round figures determined? - would be to cause the borrower to bear the entirety of the risk (as well as potential gain) from currency fluctuations. But those points may be put to one side, in light of the parties' express provision in cl 5(c).
13. True it is that "Tranche 2" reflected the discharge of an existing indebtedness denominated in Australian dollars. However, the parties executed a deed at the same time, stating that indebtedness in both Australian and Canadian dollars, and including cl 5(c).
14. I cannot accept Mr Brown's submission that the principal to be repaid should be calculated in Australian dollars (which in substance is a submission that Mr King, rather than Mr and Mrs Brown, should bear the burden of the appreciating Canadian dollar).
15. During the hearing there were exchanges with counsel for Mr King concerning the difficulties in interest being calculated in Australian dollars and principal in Canadian dollars. That is to my mind a decidedly unusual intention to impute to the parties. It carries the result that both parties share the risk associated with currency rate fluctuations. Further, it presents difficulties of a practical nature which were mentioned during the hearing. If interest is to be calculated in Australian dollars on a Canadian dollar indebtedness, when is the currency conversion to be made and how is the rate to be determined? It is not entirely straightforward to identify an exchange rate - it is apt to change from day to day and indeed during the day. There are also potential difficulties in calculating post-judgment interest pursuant to s 101 of the Civil Procedure Act 2005 (NSW). From the perspective of the lender, Mr King is presumably seeking to achieve a stated rate of return on his loan. There is nothing to suggest that he wished to subject any part of that rate of return to the uncertainties of an appreciation in the value of the Canadian dollar against the Australian dollar. There is much to be said in favour of the proposition that the intention to be implied to him is to obtain the return of his CAD750,000 plus interest on that sum in his hands (in Canadian dollars) at the agreed rate.
16. But these difficulties go nowhere. Mr Brown's complaint was confined to the Canadian dollar component of the judgment. That complaint is not made out. It is contrary to cl 5(c), and it is contrary to the other considerations mentioned above. I should note to be clear that save in relation to the currency in which the debt was to be repaid, the judgment debt was not disputed by the time the appeal came to be heard. In particular, no challenge was made to the calculation of interest and indeed it is far from clear to me that it is possible, on the materials made available in the appeal books, to verify the calculations.

The claim for wages (ground 11)

1. Mr and Mrs Brown appeal from the rejection by the primary judge of their claim for wages in the amount of $132,937. This is based upon work done by them, including in conducting cellar door sales. At trial, Mr Brown said that: "Mr King used Mrs Brown and me to manage and continue the Cellar Door to generate income to pay operational expenses, while leading us to believe that Mrs Brown and I would be compensated. He instructed me to continue so in his email of 1 October 2020 - missing from the Court Book (Annexure CC_M) but herein submitted Addendum P-164."
2. The primary judge addressed the claim for unpaid wages at [258]-[269], holding that the performance of work did not by itself give rise to an employment relationship, that Mr Brown did not point to any written contract, or words spoken by Mr King or Mr Pleash so as to give rise to a contract of employment. Her Honour concluded at [268]-[269]: "Even accepting that they did continue performing work which they had previously performed as working directors of Riverpines after Mr Pleash's appointment, that did not result in employment for which they were entitled to be paid wages. That was clearly in their own interests, given their ongoing failure to repay the balance of what they had borrowed from Mr King and to pay interest which they owed, while they continued living on the property. But that does not entitle them to an order that Mr King pay them their claimed wages."
3. Mr Brown relied on appeal, as he had relied at first instance, on material found on a Fair Work Australia website addressing the ways in which an employment relationship could be found to exist.
4. It is unclear to me whether the email on which Mr Brown relies was in evidence. However, it is reproduced in his submissions in reply (p 21 of 34). The subject matter is "Statement from Thistle Hill Wines Pty Limited for Riverpines Vineyard Pty Ltd". It contains an email from Mr Brown which in its entirety states, "Stan, We are happy to carry on using revenue to pay ongoing expenses as we have been, but it is up to you. Geoff", to which there is the following reply: "Thanks. Please use revenue to pay expenses". That exchange did not without more give rise to a relationship of employment between Mr King and Mr and Mrs Brown. The context (from the subject line) appears to be an invoice from a third party. The timing is some six months after a receiver was appointed to Riverpines, and six months after the cellar door sales had commenced. No error has been established in the reasoning of the primary judge that Mr and Mrs Brown had not established a contract of employment.

Ownership of equipment (ground 12)

1. Mr Brown's complaint is that the receiver took the equipment such as tractors and sprayers which were not owned by the company. His submissions asked, rhetorically, "What does a wine producer/wholesaler need tractors and sprayers for?" This claim failed on the basis of Mr Brown's failure to establish that the plant and equipment were owned by him and his wife personally. As mentioned above, the partnership balance sheet did not assist him. Mr Brown did not return to the document which he mentioned when this was pointed out to him. Ground 12 is rejected.

Ownership of domain name and intellectual property (ground 13)

1. A great deal of attention was given during the oral submissions to Mr Brown's claim that he personally was the owner of the domain names "Ascella Wines.com" and "Hunter Eco Resorts.com" and various cognate names. Indeed, the amended statement of cross-claim also asserted that Mr Brown owned the trademark "Ascella Wine" ([9]) and it seems that a trademark search was tendered at trial. This might matter, because insofar as the appeal amounted to a matter arising under the Trade Marks Act 1995 (Cth), it should have been commenced and heard and determined in the Federal Court of Australia: Jurisdiction of Courts (Cross‑vesting) Act 1987 (NSW), s 7(4). However, no mention whatsoever of an entitlement under the Trade Marks Act was made in oral or written submissions and, even if there were some point arising, it is de minimis compared to the other matters and only was the subject of submissions towards the conclusion of the appeal. If I were wrong about that and there was a matter arising under the Trade Marks Act, then this is a case where the interests of justice require that this Court, having heard the entirety of the appeal, decline to transfer the proceeding, a course which is authorised by s 7(6).
2. There was no evidence to which the Court was directed as to the value of the domains. The evidence as to their ownership was equivocal. Mr Brown relied upon receipts in the amount of $27.50 which he said that he had paid for personally. Mr Brown relied upon print outs from "Domain Name Lookup", a page operated by VentraIPAustralia, which suggested that the registrant was Riverpines, and the "registrant contact name" was Mr Brown. The difficulty faced by Mr Brown is that for reasons not explained in the evidence, he and his wife have chosen in part to conduct their affairs through a partnership, in part through a company of which they are sole directors and shareholders, and in part (so the Court was told) using a trust. The two possibilities on the face of the documents are that (a) Mr Brown was entitled to use the domain name and paid for them personally, and granted a licence to the company or (b) the company was directly entitled to use the domain names. The company's balance sheet as at 30 June 2018 identifies "Patents and Trademarks" as an asset of $1401, and there is nothing to which Mr Brown has referred which leads me to conclude that the primary judge erred in finding that the company owned the intellectual property which is the subject of this ground.

Riverpines (ground 14)

1. This is in substance a complaint about the sale price realised by the receiver. It extends to Mr Brown's evidence that he came close to negotiating a sale at around $5,000,000 in 2019. It includes his claims of mismanagement by the receiver, leading to a lower sale price, and the stripping by the receiver of assets of the business. Some of those claims have been addressed above.
2. This ground is not made out, substantially for reasons which have already been given. Mr and Mrs Brown did not join Mr Pleash. In any event, while Mr Brown may have come close to negotiating a higher sale price in 2019, including to potential Chinese buyers, the pandemic obviously affected the market. It seems obvious (although there was no evidence of this) that Chinese purchasers of Australian vineyards would also be deterred by Chinese sanctions upon Australian wine imports, for at least part of the attraction of such a vineyard to a Chinese purchaser might be the ability to sell its produce in China. But ultimately there was no expert evidence adduced at trial which disputed the valuations of $2.75m and $2.35m, which would have made it difficult for Mr and Mrs Brown to succeed in a claim that the sale effected by Mr Pleash was in breach of duty, even had the receiver been joined.

Golden Auna wines (ground 15)

1. This ground concerns wines said to have been held by Mr and Mrs Brown personally on behalf of Mr Lai, the principal of Golden Auna. Mr Brown complains that these wines had been sold at an average price of $21.50 per bottle, such that the inventory wrongfully seized by the receiver was worth $125,840. This was not addressed by the primary judge.
2. Mr King submitted in paragraph 71 of his submissions filed last year that this ground "does not relate to a claim pressed at the final hearing" and that "Mr Lai was not a party to the primary proceedings and is not a party to the appeal".
3. Mr Brown supplied a 34-page response, responding to most of Mr King's submissions, but with no response to paragraph 71. The response referred to an email chain on 7 June 2021 which Mr Brown regards as acknowledgement of Golden Auna's ownership of the wines. The email in its entirety is: "Geoff, I may have made a memory mistake. I have asked mark for confirmation but I think we left the coolbah wine at ROV, have u checked with them?" to which Mr Brown replied: "I moved them to First Creek" and to which Mr King responded "Ok. I will send msg to greg that they are yours, how did you identify them". That exchange falls well short of acknowledging the ownership by Golden Auna of $125,840 of wines.
4. Mr Brown said "my point is that we had an agreement between the parties that the judge overruled" (CA Tcpt, p 44(20)). He also referred to an earlier email dated 2 February 2021 in which he asked the Chief Operating Officer of First Creek Wines whether he had capacity to store 15-20 pallets immediately and a further 30 by month end, saying "These are not Riverpines Wines, but are owned by the Principal of Coolabah/Golden Auna who has assigned management of the wines to me".
5. This was addressed at trial by reference to paragraphs 23-25 of Mr Brown's affidavit as follows (Tcpt, p 187): "At para 23, it states, 'Those Golden Una wines and Coolabah wines were placed in my personal care by the owner of Coolabah, Mr Lai, and reaffirmed as such by', the email that's referred to there. Paragraph 24, 'We've been selling those Golden Una wines through our cellar wines website.' Then it states, in 25, 'When Mr King attempted to seize Mr Lai's wines with Mr Lai's support, we placed legal demands and title evidence upon Robert Oatley Wines who released the wines and we are then shipped to warehouse in the Hunter Valley owned by First Creek.' It appears that these wines that were improperly sold or seized by Mr King have been returned to Mr and Mrs Brown and are now held at a warehouse in the Hunter Valley owned by First Creek Wines. The evidence [is] wholly unsatisfactory but certainly does not support the contention that Mr King has improperly seized wines but even if he did, the evidence suggests or indicates that they obtained the return of the wines and therefore haven't suffered any loss or damage by reason of the alleged improper seizure."
6. Paragraph 26 of Mr Brown's affidavit was rejected, but in the course of explaining its relevance, Mr Brown said the following: "FIRST DEFENDANT: Well, the first, your Honour, is, that we took possession of those wines in Mudgee and it was agreed upon, at that time, that those wines did not belong to Mr King or it was excluded in the wines that were seized. We had to initiate legal processes to get Robert Oatley to agree. We then shipped, at Mr Lai's expense, those ..(not transcribable).. down to the Hunter Valley and put them in a warehouse where he had happened to move the wines that he had seized as well as into that same warehouse from Mudgee-- HER HONOUR: Mr Brown-- FIRST DEFENDANT: Yes. HER HONOUR: You are not answering my question. You are telling me a whole lot of information which is not in this affidavit. In para 26, you say that, "Mr King has mounted another attack to seize wines." If not ruled upon in this Court, you're going to commence litigation against Mr King and someone else as you did against Robert Oatley. FIRST DEFENDANT: Yes, your Honour. HER HONOUR: A statement of intention as to what you might do if something does or doesn't happen in these proceedings is not evidence that's relevant to anything that I've got to decide. I don't propose to receive that."
7. There seems to be no dispute that this point was not run at trial. This ground is not made out.

Orders

1. For those reasons the appeal should be dismissed.
2. Ordinarily costs would follow the event, and the fact that it appears that Mr and Mrs Brown have no assets to satisfy the order would not stand in the way of its being made. However, it was appropriate for this appeal to have been commenced, by reason of the $2,000,000 overstatement in the judgment, which, a year later, was corrected on Mr King's application, and occupied no significant time at the hearing. In those circumstances, I propose that Mr and Mrs Brown pay 80% of the costs of Mr King.
3. BASTEN AJA: I agree with Leeming JA.

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