IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMERCIAL DIVISION	Revised
Not Restricted
Suitable for Publication	
GENERAL LIST
Case No. CI-22-00261

DARIN WILLIAM BLAIN	First Plaintiff	
		
and		
		
SALLY LOUISE BLAIN	Second Plaintiff	
		
v		
		
BLAIN DAIRYING PTY LTD AS TRUSTEE OF THE BLAIN TRADING TRUST (ACN 139275862)	First Defendant	
		
and		
		
CRAIG ANDREW BLAIN	Second Defendant 	

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JUDGE:	HIS HONOUR JUDGE MACNAMARA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	On the papers	
DATE OF JUDGMENT:	25 May 2025	
CASE MAY BE CITED AS:	Blain & Anor v Blain Dairying Pty Ltd as trustee of the Blain Trading Trust (ACN 139275862) & Anor (No 3)	
MEDIUM NEUTRAL CITATION:	[2025] VCC 623		

REASONS FOR JUDGMENT
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Subject:	RESOLUTION OF MISCELLANEOUS MATTERS
Catchwords:	Joint venture dispute – Miscellaneous matters not dealt with in Court’s principal determination
Legislation Cited:	
Cases Cited:	
Judgment:	1.  Within 14 days, the parties must bring in short minutes to give effect to these reasons.
	2.  Costs reserved.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiffs	Ms M J Harris	Brown McComish	
			
For the Defendants	Mr M O’Haire	Maddens Lawyers	

HIS HONOUR:

Background
1	On 15 April this year I published reasons intended to dispose of the disputes between the parties in this proceeding ventilated during a lengthy trial which commenced in November last year and concluded with final submissions made by counsel on 14 March this year.  These reasons were extensive, extending to 144 pages and 597 paragraphs [2025] VCC 451
2	Nevertheless, counsel say they have identified a number of items in the dispute between the former dairy-farming joint venturers which were not dealt with in those reasons.  Counsel submitted a joint memorandum dated 14 May 2025 identifying these matters and requesting that they be adjudicated upon.
Joint venture plant and equipment – agreed items
3	According to the joint memorandum:
“6.	The parties agreed that the following items were purchased by the joint venture and retained by the defendants at the end of the joint venture:
a.	Paton’s free standing grain feeder (Annexure H / Annexure 1);
b.	square bale feeder free standing (Annexure H / Annexure 1);
c.	1 x silo auger (Annexure H / Annexure 1).” 
4	Counsel continued:
“7.	The parties agreed that the following items were purchased by the joint venture and retained by the plaintiffs at the end of the joint venture:
a.	dairy crush (Annexure H / Annexure 1); 
b.	Onga glycol pump (Annexure B / Annexure 1); 
c.	solar electrical fence unit and battery (Annexure B / Annexure 1); 
d.	plastic test bucket (Annexure 1); 
e.	hip lifters (Annexure 1); 
f.	1 x silo auger (Annexure H / Annexure 1); 
g.	Truck loading ramp (Annexure 1).” 
5	For the avoidance of doubt, I adopt and endorse the parties’ agreement on these points.
Joint venture plant and equipment – disputed items
6	The joint submission said that the parties agreed that two 1,000-gallon concrete troughs “were purchased by the joint venture”.  They said, however, that I had not determined “which party possessed the item(s) at the end of the joint venture”.
7	They noted that the plaintiffs’ closing submissions dealt with the issue of these tanks at [400]-[406], and the corresponding submissions on behalf of the defendants were to be found at [665]-[607] of their counsel’s closing submissions.
8	Both counsel noted that according to Darin the tanks had been supplied and delivered by Timboon Engineering.  Mr O’Haire noted that whilst Darin said the tanks were delivered “around 2015”, the invoice from Timboon Engineering was dated 20 March 2013 (Court Book (“CB”) 954).  Mr O’Haire invited me to accept the evidence of Craig (Transcript (“T”) 1461, Line (“L”) 30 – T1462, L30) that the troughs were used on Farm 2 or Out Paddock 1.  Accordingly, said Mr O’Haire, the troughs should be regarded as in the plaintiffs’ possession, with the plaintiffs being liable to account.  He said that according to Craig, troughs “don’t need to be replaced unless something drastic happens to them”.  Accordingly, as I understood Mr O’Haire’s argument, since concrete troughs are not fragile, additional troughs might be required for an out paddock but not for an established farm.
9	At [505] of her contentions, Ms Harris said I should treat Darin as having given definitive evidence as to the location for the delivery and installation of the troughs (T555, L26 – T556, L5), and should reject Craig’s evidence as merely speculative.  Unsurprisingly, the invoice for the troughs is not illuminating as to where they were installed.  The invoice is addressed to the plaintiffs, and not to the defendants or either of them.  Farm 1 was already an operating dairy farm as at 2013, the date of the invoice.  Darin agreed that a concrete trough would not simply be discarded; nor, having regard to its inherent durability, would it wear out or disintegrate. (T551, L30 – T552, L6)
10	It is reasonable to infer that Farm 1 already had enough concrete troughs before the purchase of these additional ones.  No event was identified such as a significant increase in stocking levels which would require the acquisition of additional troughs for Farm 1.  Out Paddock 2, however, was purchased as late as August 2011.  It is more plausible that these concrete troughs would be required for the new acquisition than for one of the “home farms”.  I conclude, therefore, that the concrete troughs are in the possession of the plaintiffs, and therefore it is the plaintiffs who must account for them to the defendants.
11	The next joint venture items in contention are:
(a)	Calf trailer (Annexure B / Annexure 1);
(b)	Palm kernel feeder (Annexure 1); and
(c)	Westfalia plate cooler (Annexure 1).
12	I turn first to the calf trailer.
13	Ms Harris, on behalf of the plaintiffs, noted that this was a counterclaim item brought by the defendants.  She said that Darin denied that the joint venture had purchased this item: rather, he had purchased it, and the joint venture had funded a refurbishment.  She referred to T1028, L10-24.  According to Ms Harris, Darin was not challenged on this point in cross-examination.  Mr O’Haire [690]-[691] said it was not in dispute that the plaintiffs were in possession of this trailer.  He noted Darin’s evidence that the joint venture funded a major overhaul (T1028, L10-24).  He said [693] that Darin’s evidence was “inconsistent with the [plaintiffs’] pleaded case, which describes the calf trailer as joint venture plant and machinery acquired after the commencement of the JV Agreement”.  He referred to Annexure B, Item 26, CB 952.  He said that Craig identified the invoice for the trailer which was bought by the joint venture new (CB 957).  In any event, even if Darin’s evidence were accepted in preference to Craig’s, “the [plaintiffs have] retained the benefit of the trailer, so should be required to account to the [first defendant] in respect of the costs of the “major overhaul”.” [695]
14	Turning immediately to the last point made by Mr O’Haire, this was not the way the matter was pleaded and presented to the Court either originally or in the joint memorandum.  Improvements and overhauls by one person to somebody else’s chattel give rise to issues of some complexity, including the operation of the doctrine of accession.  Given that this matter has not been advanced in the manner in which it is put in the defendants’ closing submissions and is affected by legal doctrines of some complexity, detailed evidence for the application of which is not available, I reject this as a basis for adjudication.
15	The invoice from Timboon Sheetmetal & Welding Service appears at CB 957.  The invoice is addressed to Craig, the second defendant, though presumably in practice it would have been paid by the first defendant.  There is nothing in the invoice to suggest that the labour and materials supplied were by way of repair.  The heading is simply “Calf Trailer”.  I infer that what was invoiced for was the custom building of a calf trailer to the defendants’ requirements.  The plaintiffs are liable to account for the calf trailer.
16	I turn next to the palm kernel feeder.  Ms Harris [455] noted that Darin under cross-examination denied that the joint venture had purchased this item.  She said:
“Darin said he supplied all the labour to build it and probably half the material, settling on 75%.  The other 25% of the material was purchased by the JV.  The palm kernal [sic] feeder remains in the [plaintiffs’] possession.” 
17	She referred to T87, L31 – T88, L14.  She said the defendants “did not prove that item and [the plaintiffs are] rightfully in the possession of that item”.
18	Mr O’Haire (reply submissions [118]) noted he had put to Darin in cross-examination that the materials for this item “were bought equally and the labour was supplied equally by both parties” (T109, L17-20).
19	Mr O’Haire noted it was accepted by the plaintiffs that they had possession of this item [698].  Mr O’Haire referred to Craig’s evidence that part of the labour to construct the item “was provided by myself [viz Craig] and Matthew Pope from Pope Contracting also provided some of the labour to build that.” (T1472, L25-27)  He said Mr Pope provided his assistance free (ibid, L28-29).  He continued, stating that the split of labour “was probably a 50/50 split.  Darrin [sic] might have done 50 per cent of it and Matthew Pope and myself probably did the other 50 per cent.” (T1473, L2-5)
20	In light of my general preference for the evidence of Craig over Darin, I conclude that the palm kernel feeder was jointly constructed by the joint venture.
21	As to the Westfalia plate cooler, Ms Harris said that according to Darin this was not purchased by the joint venture, but acquired from Steven Spokes, who “took strainer posts in exchange for the Westfalia plate cooler”.  She said that according to Darin, the strainer posts had been invoiced to the plaintiffs on 6 June 2011 by Landmark (T287, L31 – T288, L14; CB 927).  She continued at [457]:
“The Defendants did not assert that the strainer posts were owned by the Defendants or had been purchased by the JV and Craig did not give any evidence about strainer posts.” 
22	Accordingly, she said, this item had not been proven by the defendants.
23	Mr O’Haire noted that the plaintiffs conceded that they were in possession of the item.  He said that according to Craig’s evidence, Darin told him initially that the item had been provided by Mr Spokes “for no cost”, and later referred to a barter agreement.  In reply submissions [paragraph 120], Mr O’Haire referred to Darin’s evidence that he “put a heap of strainer posts in for him and posts as payment for it [viz, the Westfalia plate cooler]” (T1030, L3-5).  He contended, therefore, that the “barter” involved a supply of labour rather than material.
24	The circumstances of the acquisition of this item were peculiarly within the knowledge of Darin.  Whether the “barter” entailed the exchange of strainer posts or the exchange of labour, the consideration for the acquisition seems to have been given by Darin individually or the plaintiffs.  This item should not be regarded as having been acquired by the joint venture.
25	In relation to the items comprising the vehicle and machinery workshop referred to in Annexure 1, the joint memorandum from counsel recites, inter alia:
“There is no dispute that the steel for the workshop benches, the second workshop door, and the wiring for the workshop were purchased by the joint venture and retained by the plaintiffs ...” (Clause 11(a)) 
26	I make a finding in accordance with that agreement between the parties.
27	Again, sub-paragraph (b) of clause 11 of the joint memorandum states:
“In relation to the concrete for the workshop floor, there is no dispute that the plaintiffs retained the concrete, but the parties disagree as to whether it was jointly purchased ...” 
28	By virtue of sub-paragraph (c) of clause 11:
“i.	the parties agree that [these items] were fixtures on Farm 2.
ii.	the plaintiffs contend that, as fixtures, they should not form part of the accounting in respect of joint venture equipment.” [468] 
29	I accept the plaintiffs’ contention that since these items are fixtures, there was no obligation to return them or account for them as joint venture equipment.
Lachlan Jones loan of $2,000
30	At [271], Ms Harris said:
“Darin’s evidence, restated in XXN, was that Craig told Darin that he had lent $2,000 to [employee] Lachlan Jones and asked Darin to repay it.  Darin refused.” 
31	At paragraph [864] of his closing submissions, Mr O’Haire said that this claim relates to “a $2,000 advance on holiday pay made to Lachlan Jones in late 2016.  The [plaintiffs’] claim in relation to this amount is hopeless and entirely misconceived.”  He referred to Craig’s evidence at T1352, L11 – T1353, L9.  According to Mr O’Haire, the plaintiffs’ pleaded claim relative to this matter is that following Darin’s refusal to repay the $2,000, the first defendant charged the plaintiffs the $2,000 as a wage expense in the second quarter of the financial year ending 30 June 2017, and that this charge was in breach of the joint venture agreement.  He referred to the second Further Amended Statement of Claim, paragraphs [44]-[45], CB 46-47.  According to Mr O’Haire, this $2,000 amount was paid during a time when the company was being paid a flat management fee for which it was not obliged to account.  According to Mr O’Haire, this period lasted “until 2017, several months after the end of Mr Jones’ employment”.  He referred to T714, L17 – T716, L20 (evidence from Darin), and T1951, L15-22 (evidence from Craig), in CB 1266.
32	Darin agreed that on 1 August 2017, according to a bank statement, the plaintiffs paid $36,102.60 to the defendant company (T714, L2-3), which is five times the management fee of $7,220.52 (ibid, L7-9).  Darin agreed in cross-examination that the set management-fee regime terminated “when Lachlan Jones finished” (T712, L31).  As I understood what Mr O’Haire was putting in cross-examination, I summarised it as follows:
“So the management fee was the management fee and it didn’t move, depending on whether Lachlan Jones was paid $17,000 or $15,000 in a particular quarter.” (T713, L6-8) 
33	Darren replied:
“Well, this would have been in that period where it was $7,220 so in that per month, that covered Lachlan and casuals and whatever was left over was supposed to come back. ...  So there was an amount which was supposed to be reconciled at some point.” (Ibid, L11-16) 
34	In my principal determination I rejected the contention that the first defendant company was obliged to account for or reconcile those amounts. ([2025] VCC 451 [486])  The plaintiffs’ claim relative to the Lachlan Jones loan therefore fails.
Disposition
35	I will direct the parties to bring in short minutes to give effect to these reasons.
36	The costs are reserved.

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Certificate

I certify that these 8 pages are a true copy of the judgment of his Honour Judge Macnamara delivered on 21 May 2025.

Dated:    21 May 2025
			Jodie Daniel
Associate to His Honour Judge Macnamara