Grain trader to continue legal action

22 Jan, 2003 10:00 PM

WA grain trader Australian Foods Company will make another attempt to sue two Albany farmers for $51,000 after its statement of claim was struck out in the Perth Supreme Court last week.

The action stemmed from when two farming companies, TJ Sampson Pty and Baboo Pastoral, sold grain to AFC last March ‹ but when the amount of money wasn't paid under the terms of the agreement, the farmers asked for the grain back.

In May a written agreement was struck between the parties allowing for a return of the grain, which had since been transported to Perth.

However, AFC alleged the farmers said they would pay $57,000 in transport and handling costs before transfer of ownership, but due to an oversight this wasn't put in writing.

Mr Sampson said, in an affidavit, that when the agreement was signed there had been no discussion on additional charges.

AFC took out an interim injunction on grounds of "oral condition precedent" to stop CBH releasing the grain back to the farmers.

However, in July the Supreme Court ruled that AFC was not the legal owner of the grain and that the written agreement prevailed.

The injunction was lifted and the farmers received their wheat, which was sold several months later. But it didn't end there.

The court had granted the grain trader leave to seek a further ruling on the transport costs and in a Supreme Court hearing last Friday, AFC claimed $51,000 in damages.

While acting master Simon Dixon struck out the claim he did not dismiss the action, allowing AFC to put its case once again.

He struck out the statement of claim because sections of it had already been rejected at the injunction hearing. "At best it could have been pleaded in a better fashion," he said.

Mr Dixon also said that while the agreement indicated that there would be no claims made by the vendors, it was silent on the part of the plaintiffs.

Barrister Joshua Thomson, on behalf of Sampson and Baboo, said it was clear the agreement was intended to be a document settling all disputes between the parties. "That's why there was a transfer of grain," he said.

"Ultimately it seems to be an attempt to clarify a simple agreement and a line should be drawn at some point. They have had two chances now."

Carmelo Grasso, representing AFC, said the agreement only talked about the rights of the defendants and not the other party. "It has to be looked at in reference of what was happening at the time."

He confirmed another statement of claim would be made.


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