Elders Rural Finance Ltd v Oakhill & Ors [1991] QSC 291

.. TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE, 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting B ) ._._....,....I'!'_._.. ... ...,_. ureau._ REVISED COPIES !SSIJE:D I SUPREME COURT OF QUEENSLAND CHAMBERS WHITE MASTER No 1254 of 1991 ELDERS RURAL FINANCE LIMITED and IAN OAKHILL, PATRICIA NELL OAKHILL and ROBERT ROY OAKHILL BRISBANE .. DATE 30/9/91 JUDGMENT 1 Court F-lepcd!:1~ Bureau l •Date, £/ / I o I ; I j Plaintiff Defendants. -- 1 of 7 -- 10 20 30 40 50 300991 JUDGMENT MASTER: This application for summary judgment i.s against Patricia NelrOakhill for possession of pastoral leasehold land being Lennox Station near Jericho in this State. Leave to defend was given to the two other defendants, Ian and Robert Oakhill, in an earlier summary judgment application on condition _that a certain sum.was paid into Court by 25 September 1991 and that a defence be delivered by that date. Neither event occurred and judgment in default of defence was entered against them by the plaintiff. The amended writ of summons seeks recovery on various defaults as set out in paras 5(a) to (d). The plaintiff does not rely on para 5(a)A This subparagraph, which pleads that the defendant failed to pay principal and interest as agreed, was the subject of. leave to defend to the other two defendants in the earlier summary judgment application, a triable issue revolving around the time for payment of a loan and a seasonal facility having been raised. A fresh demand was made by the plaintiff on 4 September 1991 as against Patricia Oakhill. The pleaded defaults are, apart from para 5(a), as set out in (b), (c) and (d) and they are as follows: ." ( b) the defendant .failed to duly and punctually pay all Crown rental and rates as agreed; (c) an officer of the plaintiff became of the opinion that the defendant is unable to pay his debts from his own money as they fall due; and (d) an officer of the plaintiff became of the opinion: 10 20 30 40 50 w w Govt. Printer, Old. 2 -- 2 of 7 -- 10 30 40 300991 ( i) (ii) JUDGMENT that. the defendant maintained; assets and position of the were not sufficiently that the plaintiff's security for the moneys secured by the said Memorandum was in jeopardy. " 1o These defaults are supported by clauses in the mortgage being cl 6.1 and cl 9. Upon such defaults, all moneys become due and owing. Clause 7.1 provides that default in any other mortgage is a default in the subject mortgage, though it should be noticed that Wybenia Station is in fact subject to the present mortgage and it is in relation to that property that the defaults are presently said to exist with respect to rates and-rent. Mr Ian 0akhill deposes that Elders paid all the rents and rates because all accounts relating to the properties were sent to the plaintiff in the past at the plaintiff's request. Accordingly, he deposes that it either was not the defendant's default that the rates and rent were not paid or that the conduct of the plaintiff led the defendant to believe that the plaintiff would pay those accounts. This assertion applies not only to the failure to pay punctually all Crown rental and rates but also that the defendant was unable to pay debts from her own moneys-as they fell due. A letter of 28 September 1990 from the plaintiff _20 30 40 50 50 sets out. in what circumstances the plaintiff would continue to service the financial needs of the defendant. They were: "Following this time, no further advances will be considered excepting in the following circumstances: Govt. Printer, Old. 3 -- 3 of 7 -- 10 20 30 40 50 300991 1. 2. 3. JUDGMENT Term Loan arrears are paid. The Pastora,1cleared. House overdraft facility Ability to service any remaining debt clearly established." The letter went on to indicate that substantial funds would need to be found by the.defendant to achieve those goals and failure to do so would involve the plaintiff no alternative but·to proceed to recover the total moneys owing. By a letter of 30 January 1991, the plaintiff again wrote to the defendants stating as follows: is 10 20 "Due to your failure to cl~ar arrears and bring your debt into line with your commitments, the following procedure 30 will apply for carrying on funding. A) Funding will be limited to costs directly incurredfor maintenance of good livestock husbandry practices or costs directly incurred to enable theorderly marketing or shearing of livestock. B) Bank replenishments will be made to cover the above upon presentation of accounts to our Winton Branch Manager, Mr Tony Holloway, who will then forward 40 same with his recommendation of payment or otherwise to Mr John Whip, the Regional Finance Manager, for his perusal prior to payment. C) Merchandise purchases from Elders must be approved by Tony Holloway in accordance with the above prior to such purchases being made. In: light of the abcwe,· we suggest contact be made with Mr Winter of the DPI Barcaldine or the QIDC for adviceregarding sustena~ce funding facilities that are available to primary producers experiencing financial difficulties." If there was any doubt previously, this much was clear that rent and rates would not be paid in the future. However, rent 50 60 60 Govt. Printer, Qld. 4 -- 4 of 7 -- I, l 300991 JUDGMENT and rates fell due and remained unpaid for February and March 1991. ·-.'I'he defendants sent accounts for payment by the plaintiff in letters dated 9 and 17 April 1991, 28 June 1991 10 and 12 August 1991. These were a diverse collection of accounts but the first letter included the current rates and rent accounts. They were not paid by;the plaintiff., It is said that the plaintiff ought to. have written back declining to pay and not to do so was unconscionable. of However, notice demand in default had by then been served on the defendants on the day previously. The letter from the Department of Lands in June 1991 sent to both the 0akhills and to the plaintiff could not be construed 30 other than as a notice to a mortgagee who had an interest in 40 50 60 any action which the department IUight take for the non-payment of rent of Crown land. It cannot, in my opinion, support a conclusion, even of the most shadowy kind, that this indicated that the plaintiff was still continuing to let the defendants think that it would meet the rent due. Certain conduct referred to in Mr 0akhill's affidavit of the plaintiff not permitting the stock to be sold to raise money to be paid into Court in accordance with my earlier order is submitted to be unconscionable, but it is not relevant to these proceedings. Even if it were, I would have real difficulty in ascertaining what was unconscionable, in the sense used in:Waltons Stores (Interstate) Limited v. Maher. 164 CLR 387, about a stock mortgagee withholding such consent. Govt. Printer, Old. 5 10 20 30 40 50 60 -- 5 of 7 -- 1 300991 JUDGMENT I can see no unconscionable conduct made out on this application such as to give rise to a triable issue. 10 In that circumstance, there can be no counterclaim, as was foreshadowed, to found a stay under 0 18 r l(ii). The fear by the defendant that the plaintiff will sell the property at an undervalue, or at least in a depressed market, will only arise when the plaintiff does so either then seeking the balance 20 owing from the defendant, or, if the defendant maintains that there is a balance owing to the defendant because a higher price could have been obtained. That seems to me not to be the matter of a stay on a summary judgment application because there are presently no facts to support such a possible 10 20 30 assertion. 30 It is unnecessary in those circumstances to consider the further demand that has been made on Mrs Patricia 0akhill pleaded in para 5(a) of the amended writ of summons founded 40 upon the renewed demand on 4 September 1991. Judgment is given for the plaintiff. 50 60 MASTER: It is further ordered that the defendant, Patricia Nell 0akhill, pay the plaintiff's costs of and incidental to this application and to the action to be taxed. MASTER: By way of directions, it is ordered that the defendants, Ian and Robert 0akhill, bring their application to set aside the judgment entered in default of defence on 27 Govt. Printer, Old. 6 40 50 60 -- 6 of 7 -- 10 20 30 40 50 60 September 1991 on or before 4 October 1991. Order as per draft on the plaintiff's summons filed by leave this day. Govt. Printer, Qld. 7 ' 10 20 30 40 50 60 -- 7 of 7 --