KUENEN -v- HORTIN GRAZING CO. PTY LTD [2025] WASC 565 (13 March 2026)

1. At the hearing, the defendants acknowledged that the application is, in effect, an application to reopen the matter before judgment, in that they seek to rely on evidence filed after the conclusion of the trial.[2] Given the agreement by the plaintiffs to the tender of the Loan Variation Agreement, the hearing focused on whether leave should be granted to the defendants to rely on the Farm Lease Variation.
2. The defendants say the evidence sought to be relied on is not significant in its scope or breadth, and is relevant to a discrete issue, namely the terms of the lease between the partnership (comprising the second and third defendant) and the first defendant (Farm Lease), which was raised at trial.[3] Allowing the application would not require any additional evidence to be adduced, further submissions from the defendants, or a further oral hearing, although the defendants conceded the plaintiffs should be given the opportunity to file submissions in relation to the effect (if any) of the Farm Lease Variation.
3. The defendants submitted that it was in the interests of justice that the application be allowed, given the manner in which the trial was conducted. Counsel for the defendants drew attention to the cross-examination of Mr Hortin on the rent review clauses in the Farm Lease.[4] Given the effect of the Farm Lease Variation is to vary these clauses, it was submitted this document was relevant to the court's assessment of whether, in the event the court found the terms of the Farm Lease to be oppressive to the plaintiffs' interests, there was any continuing oppression given the variation that had now been entered into.[5]
4. The plaintiffs denied the issues relating to the Farm Lease first arose at trial. Counsel for the plaintiffs referred to [38.7] and [38.8] of their further amended statement of facts, issues, and contentions filed 9 July 2025, and the original version of this document filed 10 July 2023. Both of these documents referred to the following conduct on the part of the second and third defendants which was said to be oppressive:[6]

38.7 Allowing the partnerships to pay below market related rent for the use of the land owned by Hortin Grazing;

38.8 Failing to obtain valuations to determine the appropriate market related rent which should be claimed for the use of all of Hortin Grazing's land by the partnerships.

1. On this basis, the plaintiffs said this issue could and should have been addressed prior to trial and it was too late for the defendants to now address the matter.
2. The defendants rejected the contention they were on notice of the issue. In their submission, a different complaint from that raised in these paragraphs was put to Mr Hortin in cross-examination, namely the absence of rent review provisions that operate if agreement could not be reached between the partnership and the first defendant in relation to a market related rent. This was also said to be oppressive to the plaintiffs' interests.[7]
3. The principles that govern applications to reopen were relevantly summarised by McLure J (as her Honour then was) in Osborne v Landpower Developments Pty Ltd in the following terms:[8]

There is some uncertainty as to the test to be applied to the exercise of the Court's discretion to permit the re-opening of a matter before orders are made. The High Court in Smith v New South Wales Bar Association said:

If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised.

The rules relating to fresh evidence on appeal are well known. The appellant would need to show that there was a real possibility that the further evidence would have produced a different result if it had been admitted and that the further evidence would not have been available at the original hearing by the exercise of reasonable diligence. A similar test was applied in Watson v Metropolitan (Perth) Passenger Transport Trust on an application to re-open before judgment.

It is to be expected that a less stringent test would apply when leave to re-open is sought before reasons are delivered and orders made because the policy in favour of finality does not have the same force. In this case there was no deliberate decision not to adduce the evidence in the March affidavit but it may have been available at the earlier hearing by the exercise of reasonable diligence. It is unnecessary for me to decide that question because I propose to apply the less stringent test referred to by the High Court in Smith (supra). Relevant factors in the exercise of the discretion include the materiality of the evidence and whether the interests of justice would be advanced by its admission. [citations omitted]

1. In this case, the less stringent test applies because the hearing has been completed but reasons have not yet been given.
2. On the evidence before me, I accept the failure to adduce the Farm Lease Variation at trial was not a result of a deliberate decision by the defendants, given the document did not exist prior to or during the trial. That said, I consider, given the matters raised during the cross-examination of Mr Hortin, that with some reasonable diligence, this document could have been created during or shortly after the conclusion of the trial.
3. Given this finding, the question is whether the admission of the Farm Lease Variation would cause embarrassment or prejudice to the plaintiffs. For the following reasons, I do not consider the admission of the Farm Lease Variation would have this effect, and am satisfied that leave should be granted to the defendants to rely on the Supplementary Affidavit in its entirety.
4. First, I accept that the Supplementary Affidavit may be relevant to the issues to be decided at trial. If the court were to accept that the conduct complained of by the plaintiffs in relation to the Farm Lease was oppressive, in considering what (if any) relief ought be granted, the court is required to consider whether the oppressive conduct is continuing or has been ameliorated by subsequent events. On this basis, I accept that any variation to the Farm Lease may be material to the relief granted by the court.
5. Second, the issues raised by the Farm Lease Variation are limited. Allowing the defendants to rely on the Supplementary Affidavit will not cause any significant further delay in the finalisation of this matter. Neither party contended it would be necessary for any further evidence to be adduced or for there to be an additional oral hearing. The defendants do not seek to file any further written submissions and the plaintiffs say they can file submissions within a relatively short time (7 ‑ 14 days) after orders are made on this application.
6. Having regard to all relevant matters and circumstances, and notwithstanding the delay by the defendants in bringing this application, I consider it would be in the interests of justice to allow the application.

1. The defendants say the appropriate costs order is for the costs of the interlocutory process to be reserved. Counsel for the defendants accepted this was a departure from the traditional position, which is that a party who seeks an indulgence from the court bears the costs of the application.[9] However, in the circumstances of this case, given the proportionality of the costs of the application to the costs of the proceedings generally, as well as efficient case management, the defendants submitted the appropriate order was for cost to be reserved.[10]
2. The plaintiffs submitted that, whatever the outcome of the application, the usual order for costs should apply. They emphasised the defendants' delay in bringing their application, and submitted the evidence now sought to be relied upon could have been adduced at trial.
3. In my view, the matters raised by the defendants are not a sufficient basis for the court to depart from the traditional position. The defendants are seeking an indulgence from the court and should, in my view, bear the costs of the application irrespective of the outcome of the proceedings.

1. For these reasons, I will give the defendants leave to rely on the Supplementary Affidavit in its entirety. The defendants should pay the plaintiffs' costs of the application.
2. I will hear from the plaintiffs as to the time they require to file short written submissions to address the matters raised by the Supplementary Affidavit.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[8] Osborne v Landpower Developments Pty Ltd [2003] WASCA 117 [12] - [14], cited with approval by Quinlan CJ in Jensen v Nationwide News Pty Ltd [2019] WASC 250 [6].

[9] Stanley v Layne Christensen Co [2006] WASCA 56 [52].