Clark v Tombs

Judgment (ex tempore) 1HOEBEN JA: Ward JA will deliver the first judgment. 2WARD JA: This is an application for leave to appeal and an extension of time for the filing of a summons for leave to appeal from the judgment of Colefax SC DCJ in District Court proceedings brought by the respondents (the Tombs) against the applicants (the Clarks) in relation to a dispute arising out of an agreement for the agistment of the Tombs' cattle on a property owned by the Clarks (Wando). The nub of the dispute in the court below was as to whether, under the agistment agreement, the Tombs' cattle should have been permitted access to the whole of the Wando property, it being common ground that they had been restricted to a particular area of that property, and, if so, what damages had been suffered as a result of the breach of that agreement. 3His Honour found for the Tombs on the issue of liability and there is no appeal from that finding. His Honour held that there was sufficient evidence to assess damages, inferring that the cattle agisted on the property in 2010 would have gained the same average weight as had the cattle agisted on the property the year before and then applying a discount for vicissitudes of 20%. His Honour rejected a claim for misleading and deceptive conduct based on reliance loss on the basis that such loss had not been proved. 4The proposed grounds of the appeal are that his Honour erred in finding that there was sufficient evidence to permit the rational assessment of damages and should instead have found that there was insufficient evidence; and erred in assessing damages at $65,600 rather than declining to make any assessment of damages. 5There is no objection raised by the respondent to the extension of time sought for the filing of the summons. The delay in question was small (three days) and the explanation for the delay was error on the part of the solicitor in the calculation of the material date. Relevant matters when considering leave for such an extension include the length of and reason for the delay; whether there is a fairly arguable case for appeal; and the extent of any prejudice that the respondents may suffer. Here, there is no suggestion of any prejudice and there are fairly arguable grounds of appeal as to whether his Honour erred as a matter of law or discretion in the assessment of damages for breach of contract, at least for the purposes of determining whether leave should be granted for the extension of time. 6Turning to the leave sought for the appeal itself, the respondents have put their claim for damages principally on the basis that the lost opportunity for the cattle to have gained additional weight from grazing on the whole of the property. There was no expert evidence before his Honour as to damages. His Honour had rejected as inadmissible expert evidence various affidavits from lay persons attesting to matters in relation to this issue. The respondent's case was based on the proposition that the 2010 herd would have had a greater weight gain if there had been access to the whole of the property. The question was, if so, what that increased gain would have been. Damages were calculated by multiplying the price attributable per kilo to the lost average weight gain and discounting as earlier explained. 7His Honour posed (at [5] of his reasons) the question as to what inferences could be drawn as to the damages. 8The applicants say that, while it is permissible for the Court to engage in a level of speculation and guesswork when assessing damages for breach of contract in lost opportunity cases, it was not proper to do so here because the evidence was so deficient that it did not provide a rational basis for such an assessment. The applicants say that there was no evidence of a number of matters relevant to the question of damages (being information said to be in the control or knowledge of the respondents) namely: evidence of the amount of additional feed that would have been available (there being additional cattle feeding on the property in 2010 from the number in 2009), as to the types or breeds of cattle comprising the 2010 herd; and as to the type of conditions to which the 2010 cattle had been exposed when coming to Wando from the Tombs' property. 9It is submitted that there was no rational basis for the primary judge to assess what the weight gain would have been and that, in the absence of evidence that the 2009 and 2010 herds had come from the Tombs' property, had been subject to similar conditions and had grazed on similar vegetation before coming to Wando, his Honour should not have drawn the inference as to the weight loss that he did. 10In response on those issues the respondents say that Mr Clark, whose evidence was found not to be reliable by the trial judge, had conceded in cross examination that the cattle would have gained more weight had they grazed on the whole property; that there was evidence from other witnesses to support this; that there was ample basis to support the finding as to weight loss by reference to the evidence as to the weight gain of the smaller herd in 2009 (there being evidence of heavy rain between 2009 and 2010 and that there had been an agreement between the parties as to the number of cattle that would be permitted to graze on the property for the 2010 year by reference to the size of the property and its condition); as well as evidence from the former owner of Wando as to the appropriate size of the herd and evidence from another witness as to the property (and his observations of the cattle on that property). 11The respondents further say that the reason they were in a difficult position in proving loss of weight gain was due to the wrongful breach of the Clarks and that the primary judge was entitled to resolve any doubtful questions in their favour for that reason. It is submitted that there was evidence to support the inference that both the 2009 and 2010 herds had come from the Tombs' property; that Mr Tombs' evidence was that difference in the types or breeds of cattle was not material and there was no evidence to the contrary thereto; and that there was support by way of evidence from Mr Corbett as to his observation that the cattle had been feeding well. There was evidence as to the difference between the cattle numbers competing for feed (in that there were no cattle other than the Tombs' cattle in 2009 and the only additional cattle in 2010 were those of the Clarks in breach of the agreement with the Tombs) and that there had also been an agreement as to the size of the herd to be agisted having regard to the conditions. 12The applicants contend that his Honour did not refer to or deal with their submission that there was insufficient evidence as to weight gain and the respondents, in response to that, contend that as to the lack of expert evidence there was no need to adduce such evidence and rely on the material in the expectation loss bundle that was before his Honour. 13If leave to appeal is granted then the respondents will wish to file a notice of contention and cross-appeal in relation to the rejection of parts of the evidence and as to error in the making of certain findings and will be seeking a higher damages award. Decision 14There is no exhaustive rule of practice or criteria governing the grant of leave to appeal but it should be granted only where there are substantial reasons to allow an appellate review (Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564), such as where there is an error of principle which results in substantial injustice (Minogue v Williams (2000) 60 ALD 366; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; Niemann v Electronic Industries Ltd [1978] VR 431; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401). The requirement for leave to appeal from a judgment where the quantum in dispute is less than $100,000, implicitly recognises the importance of keeping in mind the proportionality of the dispute. 15Where there is no question of principle and there is only a small amount in dispute, leave to appeal will usually be refused (Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56; Dunn v Ross Lamb Motors [1978] 1 NSWLR 26). In Re Financial Pty Ltd as trustee for Re Financial Operations Trust v Das [2012] NSWCA 164, this Court recently emphasises the onerous task faced by an applicant when seeking leave to appeal in the absence of issues of general public importance. 16I do not consider that the issues sought to be raised by way of appellate review of his Honour's decision in the present case involve any substantial issue of principle and the costs of appellate review are likely to exceed the overall amount in dispute. I would grant leave to extend the time for the filing of the summons for leave and dismiss the summons for leave to appeal with costs. 17HOEBEN JA: I agree with the reasons of Ward JA and with the orders she proposes. Accordingly, the orders of this Court will be those proposed by Ward JA.