PARTIES:	ELDERS RURAL FINANCE LIMITED

TITLE OF COURT: JURISDICTION: FILE NO: DELIVERED: HEARING DATES: JUDGMENT OF: CATCHWORDS:

V

WILLIAM TAPP (As representative of the estate of CHARLES WILLIAM TAPP
SUPREME COURT SUPREME COURT
No 3 of 1992
Darwin 6 August 1992
21, 22, 23 July and 6 August 1992 Martin J.

Practice - Northern Territory - Pleadings - Application to strike out defence - Contractual defence of unconscionable conduct and undue influence - Elements of defence pleaded with insufficient particularity - Distinction between unconscionable conduct and undue influence considered -
Bromly v Ryan (1956) 99 CLR 367, applied.
The Commercial Bank of Australia v Amadio (1983) 151 CLR 447, applied.
Union Bank v Whitelaw (1906) VLR 7711, applied.
Practice - Northern Territory - Pleadings - Defence of estoppel pleaded - Application to strike out defence - Elements of estoppel considered -
Birmingham District Land Co v London and North Western Rail Co (1988) 40 Ch.D 168, considered.
Hughes v Metropolitan Rail Co (1877) 2 App. Cas. 439, considered.
Practice - Northern Territory - Pleadings - Application to strike out defence - Application of Supreme Court Rules
- Where pleading evasive, irrelevant, lacking in particularity, or unresponsive -
Supreme Court Rules (NT) Ol,O13,O22,O23,O47. Williams Civil Procedure Victoria, Vol. 1.
REPRESENTATION:
Counsel:

Plaintiff: 1st Defendant:
2nd Defendants:

W JN	Wells QC T J Riley QC s R Southwood

Solicitors:
Plaintiff: 1st Defendant:
2nd Defendants:

Ward Keller Philip & Mitaros Mildrens

Judgment category classification: B Court Computer Code:
Judgment ID Number: mar920019 Number of pages: 75
DISTRIBUTION:	LOCAL

mar920019
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 3 of 1992

BETWEEN:
ELDERS RURAL FINANCE LIMITED, FOSTER'S BREWING GROUP LIMITED and ELDERS LIMITED
Plaintiffs
AND:
CHARLES WILLIAM TAPP
First Defendant

AND
WILLIAM REX TAPP, JOE TAPP, BEN TAPP, WILLIAM TAPP and DANIEL TAPP
Second Defendants

CORAM:	MARTIN J.

REASONS FOR JUDGMENT
(Delivered 6 August 1992)

This is the third time in which the Court has been called upon to consider defences raised by the first and second defendants.	The writ and Statement of Claim were filed on 13 January 1992, and on 24 January a defence was filed on behalf of all of the defendants by the solicitors then acting on their behalf.	There was an interval during which some matters concerning the representation of the

defendants were resolved at the instigation of the plaintiffs, and on 13 May the solicitors previously acting on behalf of them all ceased to act on behalf of the first defendant.	On 21 May the plaintiffs issued a summons seeking orders that the whole of the defence and counterclaim of the first and second defendants be struck out and that the plaintiffs have judgment.	The first defendant died on 23 May and the application upon the plaintiffs' summons proceeded as against the second defendants only, resulting in an order on 29 May that their defence and counterclaim be struck out with leave to file a fresh defence and counterclaim within 14 days.	The requirement of the Rules as to particulars was especially urged upon those representing the second defendants on that occasion.

On 12 June the second defendants filed a fresh defence and counterclaim and a few days later the plaintiffs issued a further summons that it be struck out and that they have judgment.	That was dealt with on 25 June when that defence was also struck out, but leave was given to file and deliver a fresh defence by 2 July.	Broadly speaking, the difficulty with the second defence was that it was, amongst other things, prolix and did not comply with many of the basic rules of pleading.	on neither the first or second occasion was there any formal adjudication upon the plaintiffs' application to strike out the second defendants defence and counterclaim.		Upon senior counsel for the

plaintiffs concluding his extensive criticisms of those pleadings, those representing the second defendants on each occasion obviously thought it better that a further effort be made to put the defendants' case, and there was no argument as to the merits of the objections taken by the plaintiffs.

The original defence was on behalf of all defendants and thus it stood for some time on behalf of the first defendant and his estate although struck out as against the other defendants.	on 25 June those who were then representing the first defendant were given liberty to file a notice of ceasing to act and orders then made with a view to ensuring, so far as possible, that somebody was appointed to represent the estate.	On 7 July William Tapp, one of the second defendants, and a beneficiary of the will of the first defendant, was appointed to represent the estate in the proceedings, and by consent its defence and counterclaim (being the residue of the defence and counterclaim filed on 24 January) was struck out with a liberty to file a fresh defence by 17 July.	That was done and on 21 July the Court embarked upon the hearing of an application by the plaintiffs that the whole of the amended defences and counterclaims by both the first defendant and the second defendants be struck out and that they have judgment upon their claims.

There have been a number of other interlocutory

applications in these proceedings leading to all parties filing numerous affidavits and exhibits thereto, but as the matters now under consideration go only to the pleadings no regard will be paid to any of that evidence.	Attention will be directed only to the form and substance of the pleadings and the rules of Court made in that regard, including the discretions available thereunder.

Given the history of the proceedings to date concerning the defences and the objections which are taken to them as they presently stand, it is well to remember that pleadings have a definite and important role to play.	They are intended to inform the other side of the case for which preparation must be made for trial and they should identify the questions in dispute.	Without that identification the court may well find it difficult to discharge the obligation upon it to endeavour to ensure that all questions in the proceedings are effectively, completely, promptly and
economically determined (r. 1.10).	To those ends rules have been evolved which are to be found in o. 13 of the Rules of this Court.	It is convenient to summarise such of them as
arise for consideration in these proceedings at this stage. Unless otherwise indicated, simple reference to the rule later in these reasons may be taken as incorporating what follows in respect of that particular rule.	(The law in relation to the rules is not likely to be in dispute.	If reference is required it is to be found in Williams Civil Procedure Victoria Vol 1).

Rule 13.02(1)(a) requires that every pleading shall contain in summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved.	Pleading all the material facts means pleading all the facts necessary to constitute a complete cause of action or defence not only so that the opposite party may understand the nature of the claim or defence that must be met at trial, but also so that the adversary may determine whether the claim or defence alleged is sustainable as a matter of law.	Where there has been a failure to state all the material facts, not merely a failure to give sufficient particulars of facts which have been pleaded, the proper course is to strike out the offending pleading, with liberty to amend, rather than to order particulars.	Conversely, statements of fact which are not necessary, in that they are not material, are also liable to be struck out.	It is sufficient if the pleader states the material facts, and at trial he is free to present in argument whatever legal consequences are appropriate to the facts as found by the Court, but even if a party does allege the legal results of a fact he is not precluded at the trial from seeking to persuade the Court to draw different legal consequences from those pleaded.

Where any claim, defence or answer of a party arises by or under any Act, the pleading shall identify the specific provision relied upon (r. 13.02(1)(b)), as must the

facts which bring the case within the statute.

It is not necessary, but permissible, to raise a point of law and to plea a conclusion of law if the material facts supporting the conclusion are pleaded (r. 13.02(2)).
A point of law clearly raised may sometimes conveniently be dealt with under r. 47.04.

Passing from the general to the particular, a defence is required to comply with r. 13.07.	Relevantly it provides that the party shall specifically plead certain facts or matters, and that includes law.	The facts or matters which must be pleaded include those which:

the party alleges makes a claim not maintainable;

if not pleaded specifically, might take the opposite party by surprise, or

raises a question of fact not arising out of the preceding pleading.

The rule particularly applies where the defence is not a mere denial of the truth of the facts alleged, but an assertion that by reason of additional facts or matters of law the claim cannot succeed.

A party may in any pleading make inconsistent

allegations of fact if the pleading makes it clear that the allegations are pleaded in the alternative (r. 13.09).

Although a party need not plead the legal consequences to be drawn from the facts alleged, if that is done the party may nevertheless invite the Court to draw any legal conclusions favourable to his case whether that conclusion was pleaded or not.

Generally speaking, justice will be more readily and speedily attained if each party is fully aware of the precise nature of the allegations made by the other.	To this end every pleading is to contain the necessary particulars of any fact or matter pleaded (r. 13.10(1)).
The provision of particulars is not optional although argument may arise as to what is necessary in a particular case, but sub rule (2) provides that particulars shall be given if they are necessary to enable the opposite party to plead or to define the questions for trial or to avoid surprise at the trial.	Special emphasis is placed upon the need to provide particulars of a number of matters in sub rule (3) including, with special reference to this case, undue influence and disorder or disability of the mind.

Proper particulars help to ensure that a trial is conducted fairly, openly, without surprise and economically. They should help to define the issues and to indicate to the other side the evidence which must be called.	Knowledge of

the facts on the part of the party applying for particulars is not a ground for refusing the application since the party is entitled to know the outline of the case which his opponent will try to make, which may be something very different from the facts known to him.	It is a question of whether he has adequate knowledge of what the other party will allege to be the facts, for that is the case which he must meet.

As to admissions and denials, r. 13.12 relevantly provides that every allegation of fact in any pleading shall be taken to be admitted unless it is denied specifically or by necessary implication or is stated to be not admitted in the pleading of the opposite party.	A general denial of the allegations, or a general statement that they are not admitted, is not sufficient.		By sub rule (3) it is provided that where the party pleading intends to prove facts which are different to those pleaded by the opposite party, it shall not be sufficient for the party merely to deny or not to admit the facts so pleaded, but the party shall plead the facts he intends to prove.	The party pleading must deal with each allegation of fact of his opponent specifically and separately, the object of the rule being to direct parties towards identifying, by their pleadings, the real issues that divide them.	If it is intended to deny or not admit each and every fact contained within a particular plea then it is necessary to say so and not to simply deny or not admit the plea as a whole leaving it to the opponent to

guess at what particular fact or facts contained in the plea are in issue.	A general denial or a general statement that facts alleged are not admitted is not sufficient.	Where the party pleading has an affirmative case to make it must be disclosed and not be raised for the first time at trial and thus take the opposite party by surprise.	It is to be noted that every allegation of fact in any pleading shall be taken to be admitted unless the requirements of the rule are met, which requires that a traverse or denial of an allegation of fact must not be vague or general or evasive, but must be specific and deal with the point of substance.

The plaintiffs' summons in each case is that the whole of the current defence and counterclaim of each of the defendants be struck out and that the plaintiffs have judgment on the plaintiffs' claim and costs.	The summons is endorsed, as required, with particulars of the rules under which it is made which are said to be rules 22.02, 23.01 and
23.02.	No reliance was placed upon r. 22.02 being the rule to do with an application for summary judgment on the ground that the defendant has no defence to the whole or part of the claim included in the writ.	No reference was made to any affidavit as required by r. 22.03.

Rule 23.01 provides for summary dismissal of a proceeding (including a claim by counterclaim) which does not disclose a cause of action, is scandalous, frivolous or vexatious or is an abuse of process of the court.	Further,

where the defence to any claim in a proceeding does not disclose an answer or is scandalous, frivolous or vexatious the court may also give summary judgment.	In the context of this application the ground is that the defence and counterclaim are bad in law or otherwise fall foul of the rule, and the plaintiffs must show that by no proper amendment to the pleading could the defendants raise a good defence or counterclaim as the case may be.

Rule 23.02 which provides that where an endorsement of claim or a pleading or any part thereof does not disclose a cause of action or defence, or is scandalous, frivolous or vexatious, or may prejudice, embarrass or delay the fair trial of the proceeding or is otherwise an abuse of the process of court, then the court may order that the whole or part of the endorsement or pleading be struck out or amended.		Application of the rule does not lead to judgment.		In the circumstances of this application the plaintiffs' application is directed to the sufficiency of the pleading of the defendants as distinct from the validit}''" of the defences raised.	If any of the pleading is held to be defective the court may order that it be stuck out or amended.	The purpose of the rule is to secure compliance with the rules of pleading, so as to achieve the objective
of ensuring that the plaintiffs understand the case which is raised against them which may be the case, for example, if all material facts upon which the defendants rely are not alleged.	The powers of the court are discretionary, but as

a rule will be exercised only when some substantial objection to the pleading complained of or some real embarrassment is shown.	An application under this rule is not entitled to succeed because the pleading raises a debateable point of law.		The court may strike out the entire defence when objectionable matter is so closely intertwined with other matter that it may as a whole tend to embarrass the trial of the proceedings, but in any event whether the whole or a part of the pleading is struck out the pleading party will generally be given leave to amend or to file another pleading.

There follows a consolidation of the present pleading and rulings on the plaintiffs' applications concerning the defences and counterclaim.

AMENDED STATEMENT OF CLAIM
1.		Each of the plaintiffs is a duly incorporated limited liability company capable of suing and being sued in its own name and style.	Op 3 February 1982, the second-named plaintiff changed its name from Elder Smith Goldsbrough Mort Limited to Elders IXL Limited. On 30 November 1990, the second-named plaintiff changed its name from Elders IXL Limited to Foster's Brewing Group Limited.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
1.	Paragraph 1 of the Amended Statement of Claim is admitted.
DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM

The second defendants admit the allegations of the plaintiffs contained in paragraphs 1 and 2 of the plaintiff's amended statement of claim.

AMENDED STATEMENT OF CLAIM
Each of the second, third, fourth and fifth-named second defendants is the natural son of the first defendant ("Charles Tapp").	The first-named second defendant is the step-son of Charles Tapp.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
2.	Paragraph 2 is admitted.
DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE
PLAINTIFFS' AMENDED STATEMENT OF CLAIM

1.	The second defendants admit the allegations of the plaintiffs contained in paragraphs 1 and 2 of the plaintiff's amended statement of claim.
AMENDED STATEMENT OF CLAIM
3.		By memorandum of Mortgage dated 20 May 1986, Charles Tapp mortgaged to the second-named plaintiff all of his estate and interest in all that piece or parcel of land being Northern Territory Portion No. 1363 and being the whole of the land comprised in Pastoral Lease No 979 entered in the Register Book of Crown Leases Volume 201 Folio 42 ("Killarney station").
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
3.	As to paragraph 3, the first defendant:
{a)	admits that the first defendant executed a Memorandum of Mortgage dated 20 May 1986 {"the Killarney Mortgage");

This and the many other paragraphs in the defence'...w•· of both defendant parties suffer from a common defect.	It is not a matter of mere pleading or technicality, it is the disregard of one of the most important rules, r. 13.12(1) -
•Every allegation of fact in a pleading shall be taken to be admitted unless it is denied specifically or by necessary implication or is stated to be not admitted •••• and a general denial of the allegations, or a general statement that they are	not adJIJitted shall not be sufficient •••••.

No particular allegation of fact can be held to have been specifically denied by implication in the face of a general denial or non-admission.	The plaintiffs' application is that all statements in the defences which offend against this rule be struck out.	The better course is to allow the rule to operate.	In this as in all other pleas which offend against this rule the simple statement •Apply rule 13.12(1)• means that every allegation of fact in the relevant pa.rt of the statement of Claim is taken to be admitted.

Apply r. 13.12(1).

says that, in reliance of the matters pleaded in paragraphs 29 to 36, the Killarney Mortgage is void or, alternatively, ought to be set aside;

struck out - see below at the end of paragraph 36,

pp.	48	-	50.

shall refer to the Killarney Mortgage at the trial for its full terms and effect.

27.		In respect of paragraphs 3, 4, 5, 6, 7, a,	9 and 10 of the Amended Statement of Claim the first defendant further says that if the Mortgages are valid (which is denied), on or about 1 July 1991 the moneys secured to the second plaintiff by the first defendant pursuant to the Killarney Mortgage, the Killarney Stock Mortgage and the Maryfield Stock Mortgage and the moneys alleged by the second plaintiff to be secured to it under the Maryfield Mortgage were paid by the third plaintiff to the second plaintiff on behalf of the first defendant and thereupon such Mortgages ceased to secure any moneys to the second plaintiff.

What is meant by the reference to •Haryfield Stock Mortgage• in this paragraph is unclear as none of the securities referred to in the pleadings have been so identified.	The plaintiffs' objection goes to lack of particulars.		The first defendant says that there are no additional facts alleged to support the defence.	On the face of it if A grants a 11J.Ortgage to B to secure monies lent by B to A and C pays to B on behalf of A the money lent by B to A, then the securities cease to secure the monies lent by B to A.	Subject to clarification of what is meant by the
•Maryfield Stock Mortgage•, this paragraph may remain as part of the answer of the first defendant except that it appears to be unnecessary, irrelevant and repetitious when pleaded to paragraphs 4, 6, 8 and 10 of the statement of Claim and it is struck out as a defence to those paragraphs.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM
2.	The second defendants admit the allegations contained in paragraph 3 of the plaintiffs' amended statement of claim and say that such mortgage is designated mortgag· no. 213170.
23.	In respect of paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the plaintiffs' amended statement of claim the second defendants further say that on or about 1 July 1991 the monies secured to the second plaintiff by the first defendant pursuant to mortgage no. 213170, mortgage no. 550 and mortgage no. 1102 and the monies alleged by the second plaintiff to be secured to it under mortgage no. 104361, were paid by the third plaintiff to the second plaintiff on behalf of the first defendant and thereupon such mortgage ceased to secure any monies to the second plaintiff.

For the same reasons as are given in relation to

paragraph 27 of the defence of the first defendant this paragraph may remain except in relation to paragraphs 4, 6,
8 and 10 of the Statement of Claim.

AMENDED STATEMENT OF CLAIM
The Memorandum of Mortgage of Killarney Station contained, inter alia, the following terms:
Charles Tapp agreed to pay to the second-named plaintiff the Principal Sum, interest, charges and all other moneys secured by the said Memorandum of Mortgage upon demand (Clause 1);
Upon default being made by Charles Tapp under the Memorandum of Mortgage all moneys secured or payable or which may be secured or become payable to the second-named plaintiff by Charles Tapp either alone or jointly with any other person pursuant to any other advance accommodation agreement or security shall immediately become payable by Charles Tapp to the second-named plaintiff on demand and all such moneys shall form part of the moneys secured by the Memorandum of Mortgage and shall be recoverable by the second­ named plaintiff from Charles Tapp under and in accordance with the terms of the Memorandum of Mortgage in addition to the Principal Sum and any other moneys secured by the Memorandum of Mortgage (Clause 7);
Upon default being made in payment at the respective times and in the manner mentioned in the Memorandum of Mortgage of the Principal Sum or any part thereof or of the interest thereon or any part thereof or upon default being made in the observance or performance of any of the covenants contained in the Memorandum of Mortgage or implied by the Real Property Act for the space of seven
(7) days the second-named plaintiff shall (notwithstanding any omission neglect or waiver of the right to exercise all or any of such powers on any former occasion) be at liberty immediately thereupon or at any time thereafter to serve upon Charles Tapp the notice mentioned in Section 132 of the Real Property Act which notice need not specify any amount but shall be sufficient if it requires payment of the moneys remaining due generally and if any such default shall be continued wholly or in part for the further period of seven (7) days after the service of such notice, the second-named plaintiff may exercise in

reference to Killarney Station or any part thereof all or any of the powers of a mortgagee under the said Act or conferred by the Memorandum of Mortgage AND if at any time default shall be made in the due payment of the principal interest and other moneys secured by the Memorandum of Mortgage for seven (7) days next after the same respectively shall become payable or in the observance or performance of any covenants or agreements on the part of Charles Tapp contained or implied in the Memorandum of Mortgage then the whole of the Principal Sum and interest thereon and any other moneys secured by the Memorandum of Mortgage shall immediately become due and payable and Charles Tapp will thereafter pay the same on demand (Clause 8);
Subject only to any restrictions which may be imposed upon the second-named plaintiff by the Real Property Act or any other law upon any default by Charles Tapp which shall not be remedied in the time limited in clause 8 of the Memorandum of Mortgage the second-named plaintiff shall have the powers and rights of and for the purpose of ascertaining those powers and rights be deemed to be the owner of Killarney Station with immediate right to possession.	In particular but without limiting the generality of the foregoing the second-named plaintiff may conduct himself in all ways as with an owner in relation to sale terms lease terms and matters involving the rents and profits of the land (Clause 9).
The second-named plaintiff will rely upon the Memorandum of Mortgage of Killarney Station at the trial of this action for the full force and effect of all the terms and conditions contained therein.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT

4.		As to paragraph 4 the first defendant admits that the document contains the terms therein alleged.

27.	Struck out - see above	- pp.	13 and 14.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM

3.	Subject to full reference at the trial to the terms and effect of mortgage no. 213170 the second defendants admit the allegations contained in paragraph 4 of the plaintiffs' amended statement of claim.

23.	struck out - see above - pp. 14 and	15.

AMENDED STATEMENT OF CLAIM
5.		By Deed dated 1 December 1969, Charles Tapp mortgaged to the second-named plaintiff, by way of transfer of legal title, all of his interest in all sheep, cattle, pigs and horses together with the present and all future increase and progeny thereof brought or depastured upon or in transit to Killarney Station or any lands used and worked in conjunction therewith or land or premises acquired and worked by Charles Tapp ("the Killarney Stock").
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
As to paragraph 5, the first defendant:
admits that the first defendant executed a Deed of Mortgage dated 1 December 1969 (the Killarney Stock Mortgage");
denies each and every other allegation contained in paragraph 5 and says the effect of the terms of the Mortgage did not extend to transfer legal title to the Second Plaintiff in or to:
any progeny of the livestock conveyed by the first defendant to the Second Plaintiff on
1 December 1969; or
to any livestock other than those which were upon Killarney Station on 1 December 1969.

Subpa.ragraphs 5(a} and (b} are evasive.	It is not clear whether the defence seeks to raise matters going  to the security dOCU1118nts themselves or something else.	That was made clear in the course of argument when it was said
that reliance was placed UJX>n the provisions of the
Instruments Act, particularly s. 28.	Rule 13.02(l}(b) has not been complied with.	Struck out.

says that, in reliance of the matters pleaded in paragraphs 29 to 36, the Killarney Stock Mortgage is void and alternatively, ought to be set aside;

Struck out - see below - pp. 48 - 50.

shall refer to the Killarney Stock Mortgage at the trial for its full terms and effect.
In respect of paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the Amended Statement of Claim the first defendant further says that if the Mortgages are valid (which is denied), on or about 1 July 1991 the moneys secured to the second plaintiff by the first defendant pursuant to the Killarney Mortgage, the Killarney Stock Mortgage and the Maryfield Stock Mortgage and the moneys allegec.......
by the second plaintiff to be secured to it under the Maryfield Mortgage were paid by the third plaintiff to the second plaintiff on behalf of the first defendant and thereupon such Mortgages ceased to secure any moneys to the second plaintiff.
Further, in respect of paragraphs 5, 6, 10, 11, 13 and
14 of the Amended Statement of Claim, the first defendant says that the livestock which was on Killarney Station, Maryfield Station and Roper Valley Station on 7 January 1992 was not the livestock which was transferred by the first defendant to the second plaintiff by force of the Killarney Stock Mortgage, the Killarney/Maryfield Stock Mortgage and the Roper Valley stock Mortgage if they are valid (which is denied).

This paragraph suffers from the same defects as 5(a) and (b)•	No particulars are	provided.	Presumably it also goes to the provisions of the Instruments Act, which are not pleaded.	Struck out.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM
Save as herein traversed the second defendants admit the allegations contained in paragraph 5 of the plaintiffs' amended statement of claim and say that the said deed is designated mortgage no. 550 and that the effect of the terms of mortgage no. 550 did not extend

18

to transfer legal title to the second plaintiff in or to
any progeny of the livestock conveyed by the first defendant to the second plaintiff on 1 December 1969; or
to any livestock other than those which were upon Killarney Station on 1 December 1969.

Struck out for the same reasons as given in respect of paragraphs S(a) and (b) of the defence of the first defendant - p. 17.

In respect of paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the plaintiffs' amended statement of claim the second defendants further say that on or about 1 July 1991 the monies secured to the second plaintiff by the first defendant pursuant to mortgage no. 213170, mortgage no.
550 and mortgage no. 1102 and the monies alleged by the second plaintiff to be secured to it under mortgage no. 104361, were paid by the third plaintiff to the second plaintiff on behalf of the first defendant and thereupon such mortgage ceased to secure any monies to the second plaintiff.
Further, in respect of paragraph 5, 6, 10, 11, 13 and
14 of the plaintiffs' amended statement of claim the second defendants say the livestock which was on Killarney Station, Maryfield Station and Roper Valley Station on 7 January 1992 was not the livestock which was transferred by the first defendant to the second plaintiff by force of mortgages nos. 550, 1036 and 1102.

Struck out for the same reasons as	given in respect of paragraph 28 of the defence of the first defendant - p. 18.

AMENDED STATEMENT OF CLAIM
The Deed of Mortgage of the Killarney Stock contained, inter alia, the following terms:

19

Charles Tapp agreed to pay to the second-named plaintiff the indebtedness intended to be secured by the Deed of Mortgage of the Killarney Stock and interest thereon on demand (Clause 1);
Charles Tapp agreed that if default shall be made in payment of the indebtedness intended to be secured by the Deed of Mortgage of the Killarney Stock or any part thereof of or in the payment of any interest or in the observance or performance of any other covenant or provision on the part of Charles Tapp expressed or implied in the Deed of Mortgage of the Killarney Stock it shall be lawful for the second-named plaintiff at its discretion and Charles Tapp expressly licenses and empowers the second-named plaintiff with its agents and servants immediately and without notice and notwithstanding any payment of or on account of the indebtedness intended to be secured by the Deed of Mortgage of the Killarney Stock or any interest to enter upon Killarney Station and to seize and take possession of all the Killarney Stock with full leave and licence for the second­ named plaintiff at its discretion to recover the same or any part thereof or to remain upon and occupy any lands upon which the Killarney Stock or any part thereof may be and to continue to depasture the said Stock and thereon for so long as it may think necessary and to employ such agents to superintend and manage the said Stock at such remuneration as may be thought fit and generally to carry on the business of Charles Tapp for the purpose of obtaining the benefit to the fullest extent of the security made by the Deed of Mortgage of the Killarney Stock to sell and dispose of the said Stock or any part thereof. (Clause 13).
The second-named plaintiff will rely upon the Deed of Mortgage of the Killarney Stock at the trial of this action for the full force and effect of all of the terms and conditions contained therein.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
6.		As to Paragraph 6, the first defendant admits the Killarney Stock Mortgage contains the terms alleged therein.

Struck out - see before - pp. 13 and 14.

struck out - see before - p.	18.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE
PLAINTIFFS' AMENDED STATEMENT OF CLAIM
5.	Subject to the matters pleaded in the preceding paragraph and subject to full reference to the terms and effect of mortgage no. 550 at the trial, the second defendants admit the allegations contained in paragraph
6 of the plaintiffs' amended statement of claim.

Struck out - see	before p. 14 and 15.

struck out - see before - p.	19.

AMENDED STATEMENT OF CLAIM
7.		By Memorandum of Mortgage dated 24 June 1981, Charles Tapp mortgaged to the second-named plaintiff all of his estate and interest in all that piece or parcel of land being Northern Territory Portion 699 and being the whole of the land comprised in Pastoral Lease No 665 entered into the Register Book of Crown Leases Volume
46 Folio 44 ("Maryfield Station").
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
As to paragraph 7 the first defendant says:
the Memorandum of Mortgage therein referred to ("the Maryfield Mortgage") was purportedly executed for and on behalf of the first defendant by George Cridland ("Cridland") pursuant to Power of Attorney No. 97613;
Cridland's Power of Attorney did not enable him to validly execute the Maryfield Mortgage and accordingly the Maryfield Mortgage is void and of no effect;
says that, in reliance of the matters pleaded in paragraphs 29 to 36, the Maryfield Mortgage is void or, alternatively, ought be set aside;
shall refer to the Maryfield Mortgage at the trial for its full terms and effect.

Apply r. 13.12(1).

The assertion that the power of attorney did not enable Mr Cridland to validly execute the Mary.field Mortgage is deficient.		The requirement for particulars has been disregarded.	During argument it was suggested that the defect in empowering Mr Cridland arose from a failure to comply with provisions of the Real Property Act.	Rule 13.02(1)(b) has not been followed.	Struck out.

27.	In respect of paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the Amended Statement of Claim the first defendant further says that if the Mortgages are valid (which is denied), on or about 1 July 1991 the moneys secured to the second plaintiff by the first defendant pursuant to the Killarney Mortgage, the Killarney Stock Mortgage and the Maryfield Stock Mortgage and the moneys alleged by the second plaintiff to be secured to it under the Maryfield Mortgage were paid by the third plaintiff to the second plaintiff on behalf of the first defendant and thereupon such Mortgages ceased to secure any moneys to the second plaintiff.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE
PLAINTIFFS' AMENDED STATEMENT OF CLAIM

6.	In respect of paragraph 7 of the plaintiffs' amended statement of claim the second defendants deny that the first defendant on 24 June 1981 mortgaged his estate and interest in Maryfield Station to the second plaintiff as alleged.
Particulars
The power of attorney by which mortgage no. 104361 was granted was insufficient for that purpose.

Apply r. 13.12(1).	For the same reasons given as
to paragraph 7 of the defence of the first defendant -
p. 22.	Struck out.

23.	In respect of paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the plaintiffs' amended statement of claim the second

defendants further say that on or about 1 July 1991 the monies secured to the second plaintiff by the first defendant pursuant to mortgage no. 213170, mortgage no.
550 and mortgage no. 1102 and the monies alleged by the second plaintiff to be secured to it under mortgage no. 104361, were paid by the third plaintiff to the second plaintiff on behalf of the first defendant and thereupon such mortgage ceased to secure any monies to the second plaintiff.
AMENDED STATEMENT OF CLAIM
The Memorandum of Mortgage of Maryfield Station contained, inter alia, the following terms:
Charles Tapp agreed to pay to the second-named plaintiff on demand in writing all advances moneys indebtedness and liabilities then due or owing or which may thereafter become due or owing to the second-named plaintiff by Charles Tapp whether alone or jointly with any other person or persons company or companies whomsoever and in any manner whatsoever {Clause 1);
Charles Tapp agreed to pay to the second-named plaintiff interest on all principal moneys thereby secured or intended so to be which for the time being may be owing or unpaid at the rate usually or for the time being charged by the second-named plaintiff upon moneys owing to it by its customers computed as from the day or respective days of the same respectively being advanced or paid to or becoming owing by Charles Tapp {Clause 2);
That the space of one day was thereby limited as the period of time for which the default mentioned in Section 132 of the Real Property Act must continue before the second-named plaintiff may give to Charles Tapp the notice in writing mentioned in such section and the further space of one day (or such longer period as may be required by law) from the time of such notice was thereby limited before the power of sale mentioned in Section 133 of the said Act may be exercised (Clause 3);
That after the power of sale given shall have arisen it shall be lawful for the second-named plaintiff to exercise the same and all other powers rights and remedies thereby given or thereby implied or given to mortgagees by virtue of the Real Property Act or any other Act for the time being in force in the Territory without the necessity for making any demand or giving any notice whatever anything in the said Act or any other such Act or elsewhere contained or provided

23

or any usage or law to the contrary in anywise notwithstanding and if any default or breach shall be made as aforesaid the whole of the moneys thereby secured shall become due and payable and recoverable and the adding of interest to principal and charging interest on the aggregate amount shall not amount to a waiver of default by non-payment of interest or of any other breach or prejudice or postpone any right remedy or power of the second-named plaintiff (Clause 4);
If breach shall be made on the part of Charles Tapp in the performance or observance of any covenant or agreement therein contained or thereby implied the whole of the principal sum and other moneys thereby secured shall thereupon immediately become and be deemed to be due payable and recoverable with interest at the rate and calculated in the manner aforesaid without the necessity for any demand therefore (Clause 7);
The second-named plaintiff will rely upon the Memorandum of Mortgage of Maryfield Station at the trial of this action for the full force and effect of all of the terms and conditions contained therein.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
As to paragraph 8, the first defendant admits that the Maryfield Mortgage contains the terms therein alleged.

27.	Struck out - see before - pp. 13 and 14.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE
PLAINTIFFS' AMENDED STATEMENT OF CLAIM
7.		In respect of paragraph 8 of the plaintiffs' amended statement of claim the second defendants say that, subject to the matters pleaded in the preceding paragraph and subject to full reference to the terms and effect of mortgage no. 104361 at the trial, the said mortgage contains the terms alleged.

23.	Struck out - see before - pp.	14 and 15.

AMENDED STATEMENT OF CLAIM
9.	By Deed dated 26 November 1985, Charles Tapp mortgaged

to the second-named plaintiff, by way of transfer of legal title, all of his interest in all sheep, cattle, pigs and horses together with the present and all future increase and progeny thereof brought or depastured upon or in transit to Killarney Station or Maryfield Station or any lands used and worked in conjunction therewith or land or premises acquired and worked by Charles Tapp ("the Killarney/Maryfield Stock").
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
As to paragraph 9, the first defendant:
admits that the first defendant executed a Deed of Mortgage dated 26 November 1985 ("the Killarney/Maryfield Stock Mortgage");
denies each and every other allegation contained in paragraph 9 and says the effect of the terms of the Killarney/Maryfield Stock Mortgage did not extend to transfer legal title to the second plaintiff in or to:
any progeny of the livestock conveyed by the first defendant to the second plaintiff on 26 November 1985; or
to any livestock other than those which were upon Killarney Station or Maryfield Station on 26 November 1985.
says that, in reliance of the matters pleaded in paragraphs 29 to 36, the Killarney/Maryfield Stock Mortgage is void or alternatively, ought be set aside;
shall refer to the Killarney/Maryfield Stock Mortgage at the trial for its full terms and effect.

p.	17.

struck out - see before in relation to pa.ra. 5 -

In respect of paragraphs 3, 4, 5, 6, 7, a, 9 and 10 of the Amended Statement of Claim the first defendant further says that if the Mortgages are valid (which is denied), on or about 1 July 1991 the moneys secured to the second plaintiff by the first defendant pursuant to the Killarney Mortgage, the Killarney Stock Mortgage and the Maryfield Stock Mortgage and the moneys alleged by the second plaintiff to be secured to it under the

Maryfield Mortgage were paid by the third plaintiff to the second plaintiff on behalf of the first defendant and thereupon such Mortgages ceased to secure any moneys to the second plaintiff.
DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM
save as herein traversed the second defendants admit the allegations contained in paragraph 9 of the plaintiffs' amended statement of claim and say that the said deed is designated mortgage no. 1036 and that the effect of the terms of mortgage no. 1036 did not extend to transfer legal title to the second plaintiff in or to
any progeny of the livestock conveyed by the first defendant to the second plaintiff on 26 November 1985; or
to any livestock other than those which were upon Killarney Station and Maryfield Station on
26 November 1985.

p.	19.

Struck out - see before in relation to para. 4 -

23.	In respect of paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the plaintiffs' amended statement of claim the second defendants further say that on or about 1 July 1991 the monies secured to the second plaintiff by the first defendant pursuant to mortgage no. 213170, mortgage no.
550	and mortgage no. 1102 and the monies alleged by the second plaintiff to be secured to it under mortgage no, 104361, were paid by the third plaintiff to the second plaintiff on behalf of the first defendant and thereupon such mortgage ceased to secure any monies to the second plaintiff.
AMENDED STATEMENT OF CLAIM
The Deed of Mortgage of the Killarney/Maryfield Stock contained the following terms:
Charles Tapp agreed to pay to the second-named plaintiff the indebtedness intended to be secured by the Deed of Mortgage of the Killarney/Maryfield Stock and interest thereon on demand (Clause 1);
Charles Tapp agreed that if default shall be made in payment of the indebtedness intended to be secured by the Deed of Mortgage of the

26

Killarney/Maryfield Stock or any part thereof of or in the payment of any interest or in the observance or performance of any other covenant or provision on the part of Charles Tapp expressed or implied in the Deed of Mortgage of the Killarney/Maryfield Stock it shall be lawful for the second-named plaintiff at its discretion and Charles Tapp expressly licenses and empowers the second-named plaintiff with its agents and servants immediately and without notice and notwithstanding any payment of or on account of the indebtedness intended to be secured by the Deed of Mortgage of the Killarney/Maryfield Stock or any interest to enter upon Killarney Station and to seize and take possession of all the Killarney/Maryfield Stock with full leave and licence for the second-named plaintiff at its discretion to recover the same or any part thereof or to remain upon and occupy any lands upon which the Killarney/Maryfield Stock or any part thereof may be and to continue to depasture the said Stock and thereon for so long as it may think necessary and to employ such agents to superintend and manage the said stock at such remuneration as may be thought fit and generally to carry on the business of Charles Tapp for the purpose of obtaining the benefit to the fullest extent of the security made by the Deed of Mortgage of the Killarney/Maryfield Stock to sell and dispose of the said Stock or any part thereof.	(Clause 13).
The second-named plaintiff will rely upon the Deed of Mortgage of the Killarney/Maryfield Stock at the trial of this action for the full force and effect of all of the terms and conditions contained therein.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT

10.		As to paragraph 10 the first defendant admits the Killarney/Maryfield Stock Mortgage contains the terms therein alleged.

Struck out - see before - pp.	13 and 14.

Struck out - see before - p. 18.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM
Subject to the matters pleaded in the preceding

27

paragraph and subject to full reference to the terms and effect of mortgage no. 1036 at the trial, the second defendants admit the allegations contained in paragraph 10 of the plaintiffs' amended statement of claim.

Struck out - see before - pp. 14 and 15.

Struck out - see before - p. 19.

AMENDED STATEMENT OF CLAIM

11.		By Memorandum of Mortgage dated 11 May 1988, Charles Tapp mortgaged to the first-named plaintiff all of his-0 estate and interest in all of that piece or parcel of land being the whole of the land comprised in Pastoral Lease No 632 entered into the Register Book of Crown Leases Volume 44 Folio 59 ("Roper Valley Station").
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
As to paragraph 11, the first defendant:
admits that the first defendant executed a Memorandum of Mortgage dated 11 May 1988 ("the Roper Valley Mortgage");
says that, in reliance of the matters pleaded in paragraphs 29 to 36, the Roper Valley Mortgage is void or, alternatively, ought be set aside;

Struck out - see later - pp. 48 - 50.

shall refer to the Roper Valley Mortgage at the trial for its full terms and effect.
28.	Further, in respect of paragraphs 5, 6, 10, 11, 13 and
14 of the Amended Statement of Claim, the first defendant says that the livestock which was on Killarney Station, Maryfield Station and Roper Valley Station on 7 January 1992 was not the livestock which was transferred by the first defendant to the second plaintiff by force of the Killarney Stock Mortgage, the Killarney/Maryfield Stock Mortgage and the Roper Valley Stock Mortgage if they are valid (which is denied).

The Statement of Claim relates to the mortgage over the pastoral lease known as Roper Valley.	The reference in paragraph 28 is to a mortgage of livestock and has no relevance to the statement of Claim.	Struck out.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM

The second defendants admit the allegations contained in paragraph 11 of the plaintiffs' amended statement of claim and say that such mortgage is designated mortgage no. 203388.
24.	Further, in respect of paragraphs 5, 6, 10, 11, 13 and
14	of the plaintiffs' amended statement of claim the second defendants say the livestock which was on Killarney Station, Maryfield Station and Roper Valley Station on 7 January 1992 was not the livestock which was transferred by the first defendant to the second plaintiff by force of mortgages nos. 550, 1036 and 1102.

This paragraph suffers from the same defect as does paragraph 28 of the first defendant's defence in respect of paragraph 11 of the Statement of Claim - see above this page.	Struck out.

AMENDED STATEMENT OF CLAIM
The Memorandum of Mortgage of Roper Valley Station contained, inter alia, the following terms:
Charles Tapp agreed to pay the principal sum to the first named plaintiff on demand in writing (sub-Clause 3(1));
The "principal sum" was defined to mean all liabilities whatsoever owed to the first-named plaintiff or to any associated company being any present or future corporation which then or thereafter became related (within the meaning of Section 7 of the Companies (Victoria) Code) to the

first-named plaintiff (Clause 1);
Charles Tapp agreed to pay interest upon the principal sum to the first-named plaintiff computed from the time or respective times of the principal sum being advanced at the rate or respective rates for the time being or from time to time charged by the first-named plaintiff upon moneys owing to it (sub-Clause 3(2));
If default should be made in payment of the principal sum or any part thereof or in the payment of any interest or in the observance or performance of any other covenant or provision on the part of Charles Tapp herein expressed or implied by the Real Property Act or payable under or expressed or implied in any Loan Agreement to which this security is given and whether on the part of Charles Tapp jointly or severally with an
other Borrower or by any other Borrower jointly of''/ severally to be observed or performed or if
default be made as aforesaid in any collateral security therewith for the space of seven (7) days, the first-named plaintiff shall (notwithstanding any omission neglect or waiver of the right to exercise all of any of such powers on any former occasion) be at liberty immediately thereupon or at any time thereafter to serve upon Charles Tapp the notice mentioned in Section 132 of the Real Property Act which notice need not specify any amount but shall be sufficient if it requires payment of the moneys remaining due generally and if any such default shall be continued wholly or in part for the further period of seven (7) days after the service of such notice the first named plaintiff may exercise in reference to the Roper Valley Station or any part thereof all or any of the powers of a mortgagee under the said Act or conferred thereby AND if at any time default shall be made and due payment of the principal interest and other moneys secured thereby for seven (7) days next after the same respectively shall become payable or in observance or performance of any covenants or agreements on the part of Charles Tapp herein contained or implied then the whole of the principal sum and interest thereon and any other moneys secured thereby shall immediately become due and payable and Charles Tapp will thereafter pay the same on demand (Clause 10);
Subject only to any restrictions which may be imposed upon the first-named plaintiff by the Real Property Act or any other law upon any default by Charles Tapp which shall not be remedied in the time limited the first-named plaintiff shall have

the powers and rights of and for the purpose of ascertaining those powers and rights be deemed to be the owner of Roper Valley station with immediate right to possession.	In particular but without limiting the generality of the foregoing, the first-named plaintiff may conduct himself in all ways as would an owner in relation to sale sale terms lease terms and matters involving the rents and profits of the land {Clause 11).

The first-named plaintiff will rely upon Memorandum of Mortgage of Roper Valley Station at the trial of this action for the full force and effect of all of the terms and conditions contained therein.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
12.		As to paragraph 12, the first defendant admits that the Roper Valley Mortgage contains the terms therein alleged.
DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM
11.	subject to full reference at the trial to the terms and effect of mortgage no. 203388 the second defendants admit the allegations contained in paragraph 12 of the plaintiffs' amended statement of claim.
AMENDED STATEMENT OF CLAIM
13.		By Deed dated 11  October 1988,  Charles Tapp mortgaged to the first-named plaintiff, by way of transfer of legal title, all of his interest in all sheep, cattle, pigs and horses together with the present and all future increase and progeny thereof brought or depastured upon or in transit to Roper Valley Station or any lands used and worked in conjunction therewith or land or premises acquired and worked by Charles Tapp ("the Roper Valley Stock").
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
As to paragraph 13 the first defendant:
admits that the first defendant executed a Deed of Mortgage dated 11 October 1988 ("the Roper Valley Stock Mortgage");
denies each and every other allegation contained in paragraph 13 and says the effect of the terms of the Roper Valley Stock Mortgage did not extend to transfer legal title to the Second Plaintiff in or to:

any progeny of the livestock conveyed by the first defendant to the second plaintiff on
11 October 1988; or
to any livestock other than those which were upon Roper Valley Station on 11 October 1988.

Struck out - see before in relation to para. 5 -
p.	17.

says that, in reliance of the matters pleaded in paragraphs 29 to 36, the Roper Valley Stock Mortgage is void or, alternatively, ought be set aside;

struck out - see later - pp. 48 - so.

shall refer to the Roper Valley Stock Mortgage at the trial for its full terms and effect.

28.	struck out - see before p. 18.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM
Save as herein traversed the second defendants admit the allegations in paragraph 13 of the plaintiffs' amended statement of claim and say that the said deed is designated mortgage no. 1102 and that the effect of the terms of mortgage no. 1102 did not extend to transfer legal title to the first plaintiff
in or to any progeny of the livestock conveyed by the first defendant to the first plaintiff on
11 October 1988; or
to any livestock other than those that were upon Roper Valley Station on 11 October 1988.

Struck out - see before in relation to para. 4
-	pp.	18	and	19.

24.	Struck out - see before - p. 19.

AMENDED STATEMENT OF CLAIM
The Deed of Mortgage of the Roper Valley Stock contained, inter alia, the following terms:
Charles Tapp agreed to pay to the first-named plaintiff the indebtedness intended to be secured by the Deed of Mortgage of the Roper Valley Stock and interest thereon on demand (Clausel);
Charles Tapp agreed that if default shall be made in payment of the indebtedness intended to be secured by the Deed of Mortgage of the Roper Valley Stock or any part thereof of or in the payment of any interest or in the observance or performance of any other covenant or provision on the part of Charles Tapp expressed or implied in the Deed of Mortgage of the Roper Valley Stock it shall be lawful for the first-named plaintiff at its discretion and Charles Tapp expressly licenses and empowers the first-named plaintiff with its agents and servants immediately and without notice and notwithstanding any payment of or on account of the indebtedness intended to be secured by the Deed of Mortgage of the Roper Valley Stock or any interest to enter upon Roper Valey Station and to seize and take possession of all the Roper Valley Stock with full leave and licence for the first­ named plaintiff at its discretion to recover the same or any part thereof or to remain upon and occupy any lands upon which the Roper Valley Stock or any part thereof may be and to continue to depasture the said Stock and thereon for so long as it may think necessary and to employ such agents to superintend and manage the said Stock at such remuneration as may be thought fit and generally to carry on the business of Charles Tapp for the purpose of obtaining the benefit to the fullest extent of the security made by the Deed of Mortgage of the Roper Valley Stock to sell and dispose of the said Stock or any part thereof. (Clause 13).
The first-named plaintiff will rely upon the Deed of Mortgage of Roper Valley Stock at the trial of this action for the full force and effect of all of the terms and conditions contained therein.

33

AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
14.		As to paragraph 14, the first defendant admits the Roper Valley Stock Mortgage contains the terms therein alleged.

28.	Struck out - see before - p.	18.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM
13.		Subject to the matters pleaded in the preceding paragraph and subject to full reference to the terms and effect of mortgage no. 1102 at the trial, the second defendants admit the allegations contained in paragraph 14 of the plaintiffs' amended statement of claim.

24.	Struck out - see before - p. 19.

AMENDED STATEMENT OF CLAIM
15.	The first and second-named plaintiffs each advanced moneys to Charles Tapp for the purposes of owning and operating first Killarney Station and later Maryfield Station and Roper Valley Station from the early 1970's to 1 July 1991.	From 1 July 1991, the third-named plaintiff has advanced moneys to Charles Tapp for the purposes of operating Killarney Station, Maryfield Station and Roper Valley Station.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
Paragraph 15 is not admitted.

Apply r.	13.12(1).

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM

14.	The second defendants admit the allegations contained in paragraph 15 of the plaintiffs' amended statement of claim.

AMENDED STATEMENT OF CLAIM
The moneys advanced by the plaintiffs were advanced pursuant to agreements made between the plaintiffs and Charles Tapp for the early 1970's to 3 October 1991 ("the loan agreements").
Particulars
Each of the loan agreements contained a term that the plaintiffs would be entitled to charge interest on the moneys advanced at the plaintiffs' set rate from time to time calculated on minimum daily balances of indebtedness and compounded monthly, and:
account no 5220-864989-1: an overdraft facility provided by the second named plaintiff until 1 July 1991 and thereafter by the third named plaintiff in respect of the operational and other expenses of Killarney Station;
account no 5220-864989-2: an overdraft facility provided by the second named plaintiff until 1 July 1991 and thereafter by the third named plaintiff for the operational and other expenses of Maryfield station;
account no 5220-864989-3: an overdraft facility provided by the second named plaintiff until 1 July 1991 and thereafter by the third named plaintiff for the operational and other expenses of Roper Valley Station;
account no 5220-864989-4: a term loan facility provided by the first named plaintiff for the purpose of purchasing Killarney station;
account no 5220-864989-5: a term loan facility provided by the first named plaintiff for the purpose of purchasing Roper Valley Station;
account no 5220-864989-6: a term loan facility provided by the first named plaintiff for the purpose of purchasing Maryfield Station;
account no 5000-052347-1: an overdraft facility provided by the third named plaintiff for the operational and other expenses of Killarney station;
account no 5000-05234-2: n overdraft facility

provided by the third named plaintiff for the operational and other expenses of Maryfield Station;
(i)	account no 5000-052347-3: an overdraft facility provided by the third named plaintiff for the operational and other expenses of Roper Valley Station;
The loan agreements were written, and constituted by a course of dealings between the plaintiffs and Charles Tapp, and
insofar as the loan agreements were written, they were evidenced by the provision of monthly account statements to Charles Tapp;
insofar as the loan agreements were constituted by a course of dealings they comprised:
verbal communications;
the provision of monthly account statements to Charles Tapp setting out current indebtedness;
the submission to the plaintiffs by Charles Tapp of operational budgets based on current indebtedness; and
the acceptance by the plaintiffs of those budgets and the provision of cash flow guidelines by the plaintiffs to Charles Tapp from time to time as a· basis for further advances.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
As to paragraph 16, the first defendant:
denies there were loan agreements as alleged:

Apply r.	13.12(1).

in the alternative, if there were loan agreements (which is denied) the first defendant repeats and relies on the matters set out in paragraphs 29 to
36 herein and says that such loan agreements are void, or alternatively, ought to be set aside;

Struck out - see later pp. 48 - 50.
36

in the alternative, if there were loan agreements (which is denied) there was no agreement as to the payment of interest.

This subparagraph is struck out as a consequence of the above.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE
PLAINTIFFS' AMENDED STATEMENT OF CLAIM

15.	The second defendants do not admit the alegations contained in paragraphs 16 and 17 of the plaintiffs' amended statement of claim.

Apply r.	13.12(1).

AMENDED STATEMENT OF CLAIM
By Deed dated a December 1989, Charles Tapp acknowledged and agreed that:
He was indebted to the first and second-named plaintiffs in the sum of $7,893,823.00;
The sum of $7,893,823.00 was then due and payable to the first and second-named plaintiffs and he had failed to pay that amount to the first and second-named plaintiffs; and
He was in default in respect of each of the Memorandum of Mortgage of Killarney Station, the Deed of Mortgage of the Killarney Station Stock, the Memorandum of Mortgage of Maryfield Station, the Deed of Mortgage of the Killarney/Maryfield Stock, the Memorandum of Mortgage of Roper Valley Station and the Deed of Mortgage of the Roper Valley Stock.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
17.	The first defendant says paragraph 17 is embarrassing and requires no response.

37

The purpose of pleadings is to define issues not raise objections which can be dealt with by the appropriate application to the Court.	To say that an allegation in a statement of Claim is embarrassing and requires no response is in itself embarrassing and requires to be struck out. struck out.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE
PLAINTIFFS' AMENDED STATEMENT OF CLAIM

15.	The second defendants do not admit the allegations contained in paragraphs 16 and 17 of the plaintiffs' amended statement of claim.

Apply r.	13.12(1).

AMENDED STATEMENT OF CLAIM

18.		On 4 July 1991, the first defendant was in default in payment of the principal interest and other moneys secured by the memorandum of Mortgage of Killarney Station, the Deed of Mortgage of the Killarney Stock, the Memorandum of Mortgage of Roper Valley Station, the Deed of Mortgage of the Roper Valley Stock, the Memorandum of Mortgage of Maryfield Station and the Deed of Mortgage of the Killarney/Maryfield Stock and owed the plaintiffs $10,031,845.50 on that account.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
Paragraph 18 is denied.

Apply r.	13.12(1).

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE
PLAINTIFFS' AMENDED STATEMENT OF CLAIM

16.	The second defendants deny the allegations contained in paragraph 18 of the plaintiffs' amended statement of claim.

Apply r.	13.12(1).

AMENDED STATEMENT OF CLAIM

The plaintiffs by notice in writing dated 11 July 1991 given by their solicitors, Finlaysons, and duly served upon Charles Tapp demanded payment of the amount of
$10,031,845.50.	That demand has not been satisfied either in whole or in part.

AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
As to paragraph 19, the first defendant:

admits that a notice as alleged was given as alleged;
admits that no moneys have been paid as demanded;
denies that the notice lawfully demanded the payment of moneys.

Subparagraph (c) is evasive and does nothing to define the issues.	There are no particulars.	Struck out.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM

17.	The second defendants deny the allegations of the plaintiffs contained in paragraph 19 of the plaintiffs' amended statement of claim.

Apply r.	13.12(1).

AMENDED STATEMENT OF CLAIM
The first-named plaintiff, by notice in writing dated
6 September 1991 and duly served upon Charles Tapp gave notice in accordance with Section 132 of the Real Property Act of its intention to exercise its power of sale in respect of Roper Valley Station and also gave notice of default and intention to sell the Roper Valley Stock.

AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
As to paragraph 20, the first defendant:
admits that the notice as alleged was served;
denies that the notice was properly or lawfully served pursuant to Section 132 of the Real Property Act;

Subpa.ragraph (b) suffers from the same defects as 19(c) and for the same reasons is struck out.

The statement of Claim refers to two notices, the defence only to one, which is not identified. The issue is not defined. struck out.

says, for the reasons set out in paragraphs 29 to
36 herein, the first plaintiff has no power of sale in respect of Roper Valley Station.

struck out - see later pp. 48 - 50.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE
PLAINTIFFS' AMENDED STATEMENT OF CLAIM

18.	The second defendants do not admit the allegations contained in paragraphs 20 and 21 of the plaintiffs' amended statement of claim.

Apply r.	13.12(1).

AMENDED STATEMENT OF CLAIM
21.	The second-named plaintiff by notice in writing dated
6 September 1991 and duly served upon Charles Tapp gave notice in accordance with Section 132 of the Real Property Act of its intention to exercise its power of sale in respect of Killarney Station and Maryfield

Station and also gave notice of default and intention to sell the Killarney/Maryfield Stock and Killarney Stock.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
As to paragraph 21, the first defendant:
admits that the notice as alleged was served;
denies that the notice was properly or lawfully served pursuant to Section 132 of the Real Property Act;

p. 40.

Struck out - see above in relation to para. 20 -

says that, for the reasons set out in paragraph 29 to 36, the plaintiff has no power of sale in respect of Killarney Station or Maryfield Station.

Struck out - see later pp. 48 - so.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM

18.	The second defendants do not admit the allegations contained in paragraphs 20 and 21 of the plaintiffs' amended statement of claim.

Apply r.	13.12(1).

AMENDED STATEMENT OF CLAIM

22.		On 3 January 1992, Charles Tapp remained in default of payment of the principal interest and other moneys secured by the Memorandum of Mortgage of Killarney station, the Deed of Mortgage of the Killarney Stock, the Memorandum of Mortgage of Maryfield Station, the Deed of Mortgage of the Killarney/Maryfield stock, the Memorandum of Mortgage of Roper Valley Station and the Deed of Mortgage of the Roper Valley stock and owed the plaintiffs $11,131,081.71 on that account.

AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
As to paragraph 22, the first defendant:
denies the sum of $11,131,081.71 is owing to the plaintiffs of any of them;

Apply r.	13.12(1).

says that, without particulars of what amount is owing to which plaintiff, the pleading is embarrassing.

It	is	no	proper answer  to  an allegation of	fact O.l,,' facts in  the Statement  of  Claim to	say that  particulars  have not  been given.		The appropriate remedy is	to   seek particulars.		Struck out.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE
PLAINTIFFS' AMENDED STATEMENT OF CLAIM
19.	The second defendants deny the allegations contained in paragraph 22 of the plaintiffs' amended statement of claim.

Apply r.	13.12(1).

AMENDED STATEMENT OF CLAIM
23.		As from 3 January 1992, Charles Tapp has remained and continues to remain indebted to the plaintiffs in the sum of $11,131,081.71 with interest accruing thereon at the rate of $3,610.74 per day from that date.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
23.	As to paragraph 23, the first defendant:
(a}	denies the sum of $11,131,081.71 is owing to the plaintiffs or any of them;

Apply r. 13.12(1).

(b)		says that, without particulars of what amount is owing to which plaintiff, the pleading is embarrassing.

For the same reasons given in respect of paragraph 22(b) struck out.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE
PLAINTIFFS' AMENDED STATEMENT OF CLAIM

20.	The second defendants do not admit the allegations contained in paragraph 23 of the plaintiffs' amended statement of claim.

Apply r.	13.12(1).

AMENDED STATEMENT OF CLAIM
24.		On 7 January 1992, the first-named plaintiff served personally upon Charles Tapp a Notice of Entry into Possession of Roper Valley Station and the Roper Valley Stock.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT

24.	The first defendant admits the allegation contained in paragraph 24 but says that such notices were of no force and effect as the first defendant was not in default.

There are two elements in this paragraph of the defence.	The first, admissions as to Statement of Claim, and the second that the notices were of no force and effect as the first defendant was not in default.	As to the first pa.rt, it can remain, but all words after the figures •24• are struck out.	The allegation is not particularised and is

evasive.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM
21.	The second defendants admit the allegations contained in paragraphs 24 and 25 of the plaintiffs' amended statement of claim but say that such notices were of no force and effect as the first defendant was not in default.

For the same reasons given in respect of paragraph 24 of the defence of the first defendant the remainder of the paragraph commencing with •but say• is struck out.

AMENDED STATEMENT OF CLAIM
25.		On 7 January 1992, the second-named plaintiff served personally upon Charles Tapp a Notice of Entry Into Possession of Killarney Station and Maryfield Station and the Killarney/Maryfield Stock and the Killarney Stock.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
25.	The first defendant admits the allegation contained in paragraph 25 but says that such notices were of no force and effect as the first defendant was not in default.

All words after the figures •2s• are struck out.
See above at paragraph 24.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM
21.	The second defendants admit the allegations contained in paragraphs 24 and 25 of the plaintiffs' amended statement of claim but say that such notices were of no force and effect as the first defendant was not in default.

All words coll111lencing with •but say• struck out.
See above in relation to paragraph 21.

AMENDED STATEMENT OF CLAIM
In accordance with the Notices of Entry Into Possession referred to in paragraphs 22 and 23 hereof, on
7 January 1992:
The first-named plaintiff entered into legal and physical possession of Roper Valley Station and the Roper Valley Stock; and
The second-named plaintiff entered into legal and physical possession of Killarney Station, Maryfield Station, the Killarney/Maryfield Stock and the Killarney Stock.

Since 7 January 1992, the first-named plaintiff has remained and continues to remain in legal possession of Roper Valley Station and the Roper Valley Stock.
Since 7 January 1992, the second-named plaintiff has remained and continues to remain in legal possession of Killarney Station, Maryfield Station, the Killarney/Maryfield stock and the Killarney Stock.
On or about 9 January 1992, each of the second defendants wrongfully and inconsistently with the rights of the first and second-named plaintiffs compelled agents of the first and second-named plaintiffs who were in physical possession of Killarney station, Maryfield Station, Roper Valley Station, the Killarney Stock, the Killarney/Maryfield Stock and the Roper Valley Stock to give up physical possession of Killarney Station, Maryfield Station, Roper Valley Station, the Killarney Stock, the Killarney/Maryfield stock and the Roper Valley Stock.
The first and second defendants and each of them wrongfully and in breach of the first and second-named plaintiffs' rights continue to remain in physical possession of Killarney Station, Maryfield Station, Roper Valley Station, the Killarney Stock, the Killarney/Maryfield Stock and the Roper Valley Stock

45

and have failed and refused to deliver up physical possession of the same to the first and second-named plaintiffs.

AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
26.	Paragraphs 26, 27, 28, 29 and 30 are denied.

Apply r. 13.12(1).

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM

The second defendants deny the allegations contained in paragraphs 26, 27, 28 and 29 and 30 of the plaintiffs' amended statement of claim.

Apply r.	13.12(1).

AMENDED STATEMENT OF CLAIM

31.	The	plaintiffs seek the following orders:	
	(1)	Payment of the sum of $11,131,081.71;	
	(2)	Payment of interest at the rate of $3,610.74 from
3 January 1992 to the date of judgment;	
	(3)	A declaration that the first-named plaintiff is lawfully in possession of Roper Valley Station and the Roper Valley Stock;	
	(4)	A declaration that the second-named plaintiff is lawfully in possession of Killarney Station, Maryfield Station, the Killarney Stock and the Killarney/Maryfield Stock;	
	(5)	An order that each of the first and second defendants do give up physical possession of Killarney Station, Maryfield Station, Roper Valley Station, the Killarney Stock, the Killarney/Maryfield Stock and the Roper Valley Stock forthwith;	
	(6)	Damages; and	
	(7)	Costs.	

AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
Further:
at all material times from at least 1969, the second plaintiff was a financier intimately involved in the affairs of the first defendant and, through its pastoral division, in the management of the pastoral functions of the first defendant;
at all material times from at least 1988 the first plaintiff was a financier intimately involved in the financial affairs of the first defendant;
at all material times the personnel of the second plaintiff acted for and on behalf of the first plaintiff and, subsequent to July 1991, for and on behalf of the third plaintiff in dealings on behalf of the plaintiffs with the first defendant;
since at least 1977, the first defendant has, to the knowledge of the plaintiffs, suffered from alcoholism, drug addiction and impaired mental processes and by reason of his infirmities, was unable to preserve his own interests and was incapable of understanding the meaning and effect of the Killarney Mortgage, the Killarney Stock Mortgage, the Maryfield Mortgage, the Killarney/Maryfield Stock Mortgage, the Roper Valley Mortgage, and the Roper Valley Stock Mortgage (collectively hereafter called "the Mortgages"); and
in or about 1985 the plaintiffs assumed responsibility and control of the complete financial affairs of the first defendant.
By reason of the matters pleaded in paragraph 29:
the plaintiffs owed a fiduciary duty to the first defendant from 1969 or alternatively from 1985;
the first defendant was in a position of special disadvantage in relation to the plaintiffs; and
the plaintiffs held a position of undue influence over the first defendant.
The plaintiffs were advantaged by each of the financial transactions entered into between the plaintiffs and the first defendant in that they:
obtained profits from such transactions;

obtained security and additional security as a result of such transactions.
Prior to the execution of the Roper Valley Mortgage, the plaintiffs were aware that the acquisition of Roper Valley and the execution of the Roper Valley Mortgage were not in the best interests of the first defendant and would be likely to cause the first defendant extreme financial hardship.
At no time did the plaintiffs advise the first defendant to obtain, or take any steps to ensure the first defendant obtained, independent advice in relation to all or any of his financial transactions (including the Mortgages) with the plaintiffs and the first plaintiff did not in fact obtain such independent advice.
By reason of the incapacity of the first defendant, each of the mortgages is void.
In the alternative, the first defendant says the Mortgages and the loan agreements (the existence of which is denied) should be set aside.
Further or alternatively, in the premises, it would be harsh and unconscionable for the plaintiffs to enforce or retain the benefit of all or any of the Mortgages.

Paragraphs 29 to 36 of the defence and counterclaim of the first defendant present particular difficulty.	A mere reading of them gives rise to a number of questions and upon a closer analysis those concerns are not alleviated.	What is the case which the plaintiffs are called upon to meet?	Is it a claim of unspecified unconscionable conduct or is it a claim based upon undue influence, or does the defendant seek to raise both?	As to the distinction see the discussion of Mason J. in the unconscionable conduct case of The Commercial Bank of Australia v Amadio (1983) 151 CLR 447 at 461 and Deane J. at
474.	Paragraph 29(d) of the defence suggests elements of unconscionable conduct which arises •when one party to a

transaction is at a special disadvantage in dealing with the other party because illness ••••• impaired facilities or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in this hands• per
Fullagar J. in Bromly v Ryan (1956) 99 CLR 367 at 405.	The reference to •special disadvantage• in subparagraph 30(b) tends in that direction as does  paragraph 36.	(See Mason J. in Amadio at p. 462).	The reference to •undue influence• in paragraph 30(c) looks to another though related field.
•undue influence is the improper use by the ascendant person of such ascendancy for the benefit of himself or someone else, so that the acts of the person influenced are	not, in the fullest sense of the word, his free voluntary acts• per Hodges J. in Union Bank v Whitelaw (1906) VLR 7711; see also the discussion of Mason J. in Amadio at p. 461 and Dean J. in Amadio at p. 474.

It is unclear just what import sub-paragraphs (a), (b), (c) and (e) of paragraph 29 have, especially as there are	no particulars, nor what it is intended to convey in this context by reference to the first defendant's incapacity to understand the meaning and effect of the securities referred to.	(It is noted in passing in relation
to paragraph 29(d) that the Killarney stock mortgage was executed in 1969J •	What is to be made of the allegation in paragraph 30(a) in this context in the absence of any particulars as to which duty of a fiduciary character is

relied upon?	No particulars are provided in relation to paragraph 31 such as to demonstrate its relevance and neither paragraphs 32, 33 or 34 add anything useful as there is no clear foundation laid in what has gone before.	It is not clear just where it is intended that paragraph 34 should fit into this plea either in conjunction with other paragraphs or standing alone.	The loan agreements are mentioned for the first time in paragraph 35 and stand in isolation from all that which precedes it.	The reference to
•the premises• in paragraph 36 is uncertain.	In addition tr all that, during the course of argument it was suggested that, inter alia, paragraph 29(d) raised a defence on the part of the first defendant of non est factum.	There are insufficient particulars of undue influence and of disorder or disability of the mind (r. 13.10(3)).

It is no answer to say that these paragraphs should be read as a whole and not considered one by one and in their relationship each to the other or others.	To do that would be to deny the whole basis upon which the rules as to proper pleading are constructed.

There may be one or more defences indicated in that group, but they are not sufficiently well delineated to survive.	Such particulars as are given are not sufficient to enable the plaintiffs to plead or to define the questions for trial or avoid surprise (r. 13.10(2)).

Paragraphs 20 to 36 a.re struck out.

AMENDED DEFENCE AND COUNTERCLAIM OF THE FIRST DEFENDANT
In respect of the whole of the Amended Statement of Claim the first defendant says that the plaintiffs on
3 October 1991 represented to the first defendant that:
each and all of the Mortgages were valid and enforceable, the first defendant was then in default of his obligations under the Mortgages, the plaintiffs were then entitled to dispossess the defendants from Killarney station, Maryfield Station and Roper Valley Station and all livestock respectively thereupon ("the secured properties") and to seize possession thereof, and the plaintiffs intended so to do; and

the plaintiffs would refrain from taking possession if the first defendant immediately executed and delivered to the second defendants an appropriate document of assignment to the second defendants of the full legal and beneficial interest in the secured properties and all of the other assets of the first defendant; and
if the first defendant immediately effected such assignment by execution of such document and the second defendants contemporaneously entered into an agreement with the plaintiffs under which the second defendants undertook to the plaintiffs to:
remain upon the secured properties, as proprietors;
at their own expense, to keep the secured properties in good order and condition;

at their own expense, perform the husbandry of the livestock the subject of the securities;
at their own costs, undertake responsibility to discharge the proper debts of the first defendant to the plaintiffs; and
attempt to reduce those debts to the level satisfactory to the plaintiffs by, at their own expense, engaging solicitors to draw tender documents and commission the plaintiffs, for reward, to offer the secured properties, to the public for sale by tender, and

upon the execution of the said assignment and the giving of the undertaking referred to in paragraph 37(c) hereof the plaintiffs would enter into serious discussions with the defendants to achieve a reasonable reduction in the debt level; and
if by 7 February 1992
no purchase offers had been received,
no purchase offers at a level of price acceptable to the plaintiffs and the defendants had been received, or
such purchase offers that had been received and were acceptable to the plaintiffs and the defendant in respect of two or less of the secured properties, were insufficient to discharge the proper debts of the first defendant to the satisfaction of the plaintiffs,
the plaintiffs would enter into serious discussion with the defendants with a view to agreeing the level of debt of the first defendant and upon such agreement being arrived at the plaintiffs and the second defendants would enter into an agreement (described by the plaintiffs as a "work out" agreement) under which the second defendants would undertake to discharge and the plaintiffs would accept payment of such debts within a time frame and by a means that was practical and achievable having regard to the circumstances of the beef industry at that time.
Particulars
The said representation was made orally on
3 October 1991.	The place at which the representation was made was at Katherine Frontier Lodge, Katherine, NT.	The plaintiffs made the representation partly through their servant and agent Lindsay Walter Wapper and partly by their solicitor Mr Stephen Gerlach.	The statements comprising part of the representation made by
Mr Wapper occurred between 9.00am and 10.00am and at or about 4.30pm.	The statements made by
Mr Gerlach occurred at or about 12.00 noon and at or about 2.00pm.	The persons present when the statements were made by Mr Wapper were the first defendant, the second defendants and their solicitor Athol Geoffrey James, and the servants and agents of the plaintiffs Malcolm Alan Sparrow and Peter Francis Moffat, and the solicitor for the plaintiffs Stephen Gerlach.	The persons present when the statements were made by

Mr Gerlach were he and the said Mr James.
In reliance upon the representations of the plaintiffs pleaded in paragraph 37, the first defendant effected the assignment referred to in paragraph 37(b) hereof.
In reliance upon the representations of the plaintiffs pleaded in paragraph 37 the second defendants performed the matters set out in sub-paragraphs 37(b) and 37(c) hereof and in particular:
occupied the secured properties, as proprietors, from 3 October 1991;
at their own expense and employing their own efforts without recompense from any person, kept the secured properties in good order and condition from 3 October 1991 until the commencement of this proceeding;
at their own expense and employing their own efforts without recompense from any person, performed the husbandry of the livestock the subject of the securities from 3 October 1991 until the commencement of this proceeding;
at their own expense engaged solicitors to draw tender documents for an offer of the secured properties for sale to the public by tender;
commissioned the plaintiffs, for reward, to offer the secured properties to the public for sale by tender; and
offered the secured properties to the public for sale by tender.
In relying upon the representations of the plaintiffs pleaded in paragraph 37 hereof the first defendant suffered detriment in that he assigned his interest in the secured properties to the second defendants.
By reason of the representations in paragraph 37 hereof, the reliance of the defendants thereupon pleaded in paragraphs 38 and 39 hereof and the detriment to the first defendant arising from such reliance pleaded in paragraph 40 hereof, the plaintiffs are estopped from denying:
that on 3 October 1991 the first defendant assigned to the second defendants the full legal beneficial ownership of all of the assets of the first defendant, including the secured properties and the livestock the subject of the Mortgages, as the same were on 3 October 1991;

that the plaintiffs consented to such assignment;
that the plaintiffs on 3 October 1991 abandoned any right to enter into possession of the secured properties and the livestock based upon default of the first defendant;
that the plaintiffs on 3 October 1991 gave up their rights derived from the Mortgages as against the first defendant and the secured properties and accepted, in lieu thereof, the agreement of the second defendants as pleaded in paragraph 37(c) hereof;
that the plaintiffs were and remain obliged to enter into the said "work out" agreement with the second defendants.

In the light of developments in regard to estoppal in recent years in Australia, and the unsettled state of the law, it would not be just to summarily strike out a plea such as is encompassed in these paragraphs, notwithstanding grave doubts about them.	In broad terms the defendant alleges that the plaintiffs, as mortgagees of property from the first defendant asserting contractual rights arising under those mortgages, entered upon a course of negotiation which induced him to believe that the rights would not be enforced or would be kept in suspense or abeyance for a particular time, and that he had changed his position in reliance thereon.	That type of proposition was that upon which some of the earliest developments in the law of promissory estoppal was based (Hughes v Metropolitan Rail Co. (1877) 2 App. Cas. 439 at 447 and Birmingham and District Land Co v London and North Western Rail Co. (1888) 40 eh.D 168 at 286)•	It is true that many refinements have been introduced in the development of the law, nevertheless,

the core concept appears to remain.	It may no longer be necessary that the parties be	in a contractual relationship. Here, on the face of the pleading, there are representations as to law and fact and future conduct alleged against the plaintiffs.	As to future conduct, it is said to be	based upon undertakings or promises of the defendants which they assert they performed.	The defendants all allege that they changed their position in reliance upon those representations.	It is not to the point on this application to consider whether the plea should be	struck out in the light of the relief which is sought or any answers which the plaintiffs may claim to have.		Whether the plea succeeds remains to be		seen in the light of all the evidence and full argument as to the law.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM

In respect of the whole of the plaintiffs' amended statement of claim the second defendants say that the plaintiffs on 3 October 1991 represented to the second defendants that
each and all of the said mortgages ("the securities") were valid and enforceable, the first defendant was then in default of his obligations under the securities, the plaintiffs were then entitled to dispossess the defendants from Killarney Station, Maryfield Station and Roper Valley Station and all livestock respectively thereupon ("the secured properties") and to seize possession thereof, and the plaintiffs intended so to do, and that
the plaintiffs would refrain from taking possession if the first defendant immediately executed and delivered to the second defendants an appropriate document of assignment to the second defendants of the full legal and beneficial interest in the secured properties and all of the other assets of the first defendant; and that

if the second defendants immediately accepted such assignment by execution of such document and contemporaneously entered into an agreement with the plaintiffs under which the second defendants undertook to the plaintiffs to,

25.3.1
25.3.2

25.3.3

25.3.4

25.3.5

remain upon the secured properties, as proprietors,
at their own expense, to keep the secured properties in good order and condition,
at their own expense, perform the husbandry of the livestock the subject of the securities,
at their own cost, undertake responsibility to discharge the proper debts of the first defendant to the plaintiffs; and
attempt to reduce those debts to a level satisfactory to the plaintiffs by, at their own expense, engaging solicitors to draw tender documents and commission the plaintiffs, for reward, to offer the secured properties, to the public for sale by tender, and that

upon the execution of the said assignment and the giving of the undertaking referred to in paragraph
25.3 hereof the plaintiffs would enter into serious discussions with the second defendants to achieve a reasonable reduction in the debt level; and that
if by 7 February 1992

25.5.1
25.5.2

25.5.3

no purchase offers had been received; no purchase offers at a level of price
acceptable to the plaintiffs and the second defendants had been received, or
such purchase offers that had been received and were acceptable to the plaintiffs and the second defendants in respect of two or less of the secured properties, were insufficient to discharge the proper debts of the first defendant to the satisfaction of the plaintiffs,

the plaintiffs would enter into serious discussion with the second defendants with a view to agreeing the level of debt of the first defendant and upon such agreement being arrived at the plaintiffs and the second

defendants would enter into an agreement (described by the plaintiffs as a "work out" agreement) under which the second defendants would undertake to discharge and the plaintiffs would accept payment of such debts within a time frame and by a means that was practical and achievable having regard to the circumstances of the beef industry at that time.
Particulars
The said representation was made orally on 3 October 1991.	The place at which the representation was made was at Katherine Frontier Lodge, Katherine, NT.	The plaintiffs made the representation partly through their servant and agent Lindsay Walter Wapper and partly by their solicitor Mr Stephen Gerlach.	The statements comprising part of the representation made by Mr Wapper occurred between 9.00am and 10.00am and at or about 4.30pm.	The statements made by mr Gerlach occurred at or about 12.00 noon and at or about 2.00pm.	The persons present when the statements were made by
Mr Wapper were the first defendant, the second defendants and their solicitor Athol Geoffrey James, and the servants and agents of the plaintiffs Malcolm Alan Sparrow and Peter Francis Moffat, and the solicitor for the plaintiffs Stephen Gerlach.	The persons present when the statements were made by
Mr Gerlach were he and the said Mr James.
In reliance upon the representation of the plaintiffs pleaded in the preceding paragraph the second defendants performed the matters set out in subparagraphs 25.2 and 25.3 hereof and in particular:
occupied the secured properties, as proprietors, from 3 October 1991;
at their own expense and employing their own efforts without recompense from any person, kept the secured properties in good order and condition from 3 October 1991 until the commencement of this proceeding;
at their own expense and employing their own efforts without recompense from any person, performed the husbandry of the livestock the subject of the securities from 3 October 1991 until the commencement of this proceeding;
at their own expense engaged solicitors to draw tender documents for an offer of the secured properties for sale to the public by tender;
commissioned the plaintiffs, for reward, to offer the secured properties to the public for sale by tender; and

offered the secured properties to the public for sale by tender.
In relying upon the representation of the plaintiffs pleaded in paragraph 25 hereof the second defendants suffered detriment in that:
in accepting the document of assignment from the first defendant the second defendants incurred onerous financial responsibilities;
in remaining upon the secured properties, as proprietors, from 3 October 1991 until the commencement of this proceeding the second defendants deprived themselves of gainful opportunities to earn income from the performance of work other than on the secured properties;
in keeping the secured properties in good order and condition from 3 October 1991 until the commencement of this proceeding the second defendants incurred cost and expense which they paid and discharged from their own funds;
in performing the work, and providing associated services, for the husbandry of the livestock the subject of the securities from 3 October 1991 until the commencement of this proceeding the second defendants gratuitously performed onerous work and expended their own funds for the supply of consumable stores necessary for such husbandry;
in engaging solicitors to draw tender documents the second defendants incurred and discharged onerous financial responsibilities in respect of the professional fees of such solicitors.
By reason of the representations pleaded in paragraph 25 hereof, the reliance of the second defendants thereupon pleaded in paragraph 26 hereof and the detriment to the second defendants arising from such reliance pleaded in paragraph 27 hereof, the plaintiffs are estopped from denying:
that on 3 October 1991 the first defendant assigned to the second defendants the full legal and beneficial ownership of all of the assets of the fist defendant, including the secured properties and the livestock the subject of the securities, as the same were on 3 october 1991;
that the plaintiffs consented to such assignment;
that the plaintiffs on 3 October 1991 abandoned any right to enter into possession of the secured properties and the livestock based upon default of

the first defendant;
that the plaintiffs on 3 October 1991 gave up their rights derived from the securities as against the first defendant and the secured properties and accepted, in lieu thereof, the agreement of the second defendants as pleaded in sub paragraphs 25.3, 25.4 and 25.5 hereof;
that the plaintiffs were and remain obliged to enter into the said "work out" agreement with the second defendants.

See above in relation to paragraphs 37 to 41 of the defence of the first defendant.

AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
Further and in the alternative, in respect of the whole of the Amended Statement of Claim the first defendants say that:
on 3 October 1991 the plaintiffs expressly requested the first defendant to assign all his legal and beneficial interest in and to the whole of the livestock on the secured properties ("the stock") to the second defendant.
Particulars
Such request was made orally by the said Lindsay Walter Wapper at Katherine Frontier Lodge, Katherine NT between 9.00am and 10.00am in this presence of the said Malcolm Alan Sparrow, the said Stephen Gerlach, the said Peter Francis Moffat, Charles William Tapp, the second defendants and their solicitor Athol Geoffrey James.
the plaintiffs made such request to the first defendant in consideration of the second defendants agreeing with the plaintiffs:
to accept such assignment;
thereafter at their own expense and upon their own responsibility and employing their own unrenumerated labour, to be responsible for and perform all necessary husbandry of the stock at all times thereafter;

to undertake responsibility to discharge the proper debts of the first defendant to the plaintiffs;
to attempt to reduce those debts to a level satisfactory to the plaintiffs by, at the second defendants' own expense, engaging solicitors to draw tender documents and to commission the plaintiffs for reward to offer the stock to the public for sale by tender, and
if by 7 February 1992;
no purchase offers had been received;
no purchase offers at a level of price acceptable to the plaintiffs and the second defendants had been received;
such purchase offers that had been received and were acceptable to the plaintiffs and the second defendants were insufficient to discharge the proper debts of the first defendant to the satisfaction of the plaintiffs;
to enter into serious discussion with the plaintiffs with a view to agreeing the level of debt of the first defendant, and upon such agreement being arrived at enter into an agreement with the plaintiffs (described by the plaintiffs as a "work out" agreement) under which the second defendants would undertake to pay and the plaintiffs would accept payment of, such debts within a time frame and by a means that was practical and achievable having regard to the circumstances of the beef industry at that time.
Particulars
the first defendant repeats the Particulars given in sub-paragraph (a) herein.
the second defendants agreed to the request of the plaintiffs pleaded in the preceding sub-paragraph hereof and agreed with the plaintiffs to perform the matters therein particularised.
Particulars
The acceptance by the defendants occurred in conversation between the defendants and the said Lindsay Walter Wapper at the time and in the circumstances particularised in sub-paragraph (a) herein.

with the consent of the second plaintiff and the first plaintiff the first defendant thereupon assigned to the second defendants the whole of the stock by delivery thereof and the second defendants accepted such assignment and the same were freed and discharged from the operation of the Mortgages.
Particulars
Such assignment took place by the oral declaration of the first defendant, subsequently evidenced in writing, made at or about 4.25pm on 3 October 1991 in the presence of the second defendants and their said solicitor.	Within minutes of such declaration the first defendant, in company with the second defendants and the said solicitor, met with the officers and legal adviser of the plaintiffs particularised in sub-sub-paragraph (a) hereof and orally reconfirmed such assignment.
The said Lindsay Walter Wapper thereupon orally consented to such assignment on behalf of the plaintiffs and subsequently acknowledged such assignment in writing by the endorsement made by the said Lindsay Walter Wapper upon a letter dated
3 October 1991 signed by the second defendants and addressed to the plaintiffs which was drafted and engrossed by the plaintiffs and submitted to the second defendants for signature at or about 9.00pm on 3 October 1991.

The arrangements said to have lain at the core of the defendants' pleas based upon an estoppel are	also said to have amounted to a contract, which being implemented, freed and discharged the stock from the operation of the mortgages.	Leaving aside nice questions of contract law, it is not alleged that the plaintiffs undertook to discharge the mortgages nor that they had been discharged.		What is alleged is that upon the assignment by the first defendant to the second defendants of the stock by delivery, the stock were freed and discharged from the operation of the mortgages.	What is contended for does not follow from what is pleaded.		It is not unusual for mortgaged property to be

transferred, assigned or otherwise dealt with subject to existing mortgages with or without the consent of the mortgagee.

Paragraph 42 is struck out.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM
AND FURTHER and in the alternative, in respect of the whole of the plaintiffs' amended statement of claim the second defendants say that:
On 3 October 1991 the plaintiffs expressly requested the first defendant to assign all his legal and beneficial interest in and to the whole of the stock to the second defendants;
Particulars
Such request was made orally by the said Lindsay Walter Wapper at Katherine Frontier Lodge, Katherine NT between 9.00am and 10.00am in the presence of the said Malcolm Alan Sparrow, the said Stephen Gerlach, the said Peter Francis Moffat, the first defendant, the second defendants and their solicitor Athol Geoffrey James.
the plaintiffs made such request to the first defendant in consideration of the second defendants agreeing with the plaintiffs:

29.2.1
29.2.2

29.2.3

29.2.4

to accept such assignment;
thereafter at their own expense and upon their own responsibility and employing their own unremunerated labour, to be responsible for and perform all necessary husbandry of the stock at all times thereafter;
to undertake responsibility to discharge the proper debts of the first defendant to the plaintiffs;
to attempt to reduce those debts to a level satisfactory to the plaintiffs by, at the second defendants' own expense, engaging solicitors to draw tender documents

29.2.5

and to commission the plaintiffs for reward to offer the stock to the public for sale by tender, and
if by 7 February 1992;

no purchase offers had been received,
no purchase offers at a level of price acceptable to the plaintiffs and the second defendants had been received,
such purchase offers that had been received and were acceptable to the plaintiffs and the second defendants were insufficient to discharge the proper debts of the first defendant to the satisfaction of the plaintiffs,
to enter into serious discussions with the plaintiffs with a view to agreeing the level of debt of the first defendant, and upon such agreement being arrived at enter into an agreement with the plaintiffs (described by the plaintiffs as a "work out" agreement) under which the second defendants would undertake to pay and the plaintiffs would accept payment of, such debts within a time frame and by a means that was practical and achievable having regard to the circumstances of the beef industry at that time.
Particulars
The second defendants repeat the particulars given in paragraph 29.1 herein
the second defendants agreed to the request of the plaintiffs pleaded in the preceding sub paragraph hereof and agreed with the plaintiffs to perform the matters therein particularised.
Particulars
The acceptance by the second defendants occurred in conversation between the second defendants and the said Lindsay Walter Wapper at the time and in the circumstances particularised in paragraph 29.1 herein.
with the consent of the second plaintiff and the first plaintiff the first defendant thereupon assigned to the second defendants the whole of the stock by delivery thereof and the second

defendants accepted such assignment and the same were freed and discharged from the operation of the said mortgages.
Particulars
such assignment took place by the oral declaration of the first defendant, subsequently evidenced in writing, made at or about 4.25pm on 3 October 1991 in the presence of the second defendants and their said solicitor.	Within minutes of such declaration the first defendant, in company with the second defendants and the said solicitor, met with the officers and legal adviser of the plaintiffs particularised in sub paragraph .4 of this paragraph and orally reconfirmed such assignment.	The said Lindsay Walter Wapper thereupon orally consented to such assignment on behalf of the plaintiffs and subsequently acknowledged such assignment in writing by the endorsement made by the said Lindsay Walter Wapper upon a letter dated
3 October 1991 signed by the second defendants and addressed to the plaintiffs which was drafted and engrossed by the plaintiffs and submitted to the second defendants for signature at or about 9.00pm on
3 October 1991.

For the same reasons as given in respect of paragraph 42 of the defence of the first defendant - pp. 61
- 62 this paragraph is struck out.

AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
Further and in the alternative, in respect of the whol of the plaintiffs' Amended Statement of Claim the first defendant says that:
on 3 October 1991 the plaintiffs expressly requested the first defendant to transfer and convey all his legal and beneficial interest in and to the secured properties to the second defendants;
Particulars
The first defendant repeats the particulars given in respect of paragraph 42(a) hereof.
the plaintiffs made such request to the first defendant in consideration of the defendants agreeing with the plaintiffs in the terms set out in paragraph 42(b) hereof.

the defendants agreed to the request of the plaintiffs pleaded in the preceding sub-paragraph hereof and agreed with the plaintiffs to perform the matters therein particularised;
Particulars
The acceptance by the defendants occurred in conversation between the defendants and the said Lindsay Walter Wapper at or about the time and in the circumstances particularised in paragraph 42{a) hereof.
with the consent of the second plaintiff and the first plaintiff the first defendant thereupon transferred and conveyed to the second defendants the whole of his legal and beneficial interest in and to the secured properties and the second defendants accepted such transfer and conveyance;
Particulars
Such transfer and conveyance took place by the execution and delivery of a deed entered into between the first defendant, the second defendants and their mother at or about 4.25pm on ·3 October 1991 which said deed was on 23 January 1992 registered in the Family Court of Australia at Darwin as a maintenance agreement pursuant to Section 86 of the Family Law Act.	Within minutes of such transfer and conveyance the first defendant, in company with the second defendants and their said solicitors, met with the officers and said legal adviser of the plaintiffs and informed them of such transfer and conveyance.
The said Lindsay Walter Wapper thereupon orally acknowledged such transfer and conveyance on behalf of the plaintiffs and subsequently acknowledged such transfer and conveyance in writing by the endorsement made by the said Lindsay Walter Wapper upon a letter dated
3 October 1991 signed by the second defendants and addressed to the plaintiffs which was drafted and engrossed by the plaintiffs and submitted to the second defendants for signature at or about 9.00pm on 3 October 1991.

This defence is in similar form to that relating to the stock, but refers to the mortgages of the pastoral leases.	It does not expressly contend for any result and does not disclose any defence to the plaintiffs' claims.	If

it is intended to show and lead to a defence that the pastoral leases were freed and discharged from the mortgages then on the facts as pleaded it must fail.	Struck out.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM

And further and in the alternative, in respect of the whole of the plaintiffs' amended statement of claim, the second defendants say that:
on 3 October 1991 the plaintiffs expressly requested the first defendant to transfer and convey all his legal and beneficial interest in and to the mortgaged properties to the second defendant;
Particulars
The second defendants repeat the particulars given in respect of paragraph 29.1 hereof.
the plaintiffs made such request to the first defendant in consideration of the second defendants agreeing with the plaintiffs in the terms set out in paragraph 29.2 hereof.
the second defendants agreed to the request of the plaintiffs pleaded in the preceding sub paragraph hereof and agree with the plaintiffs to perform the matters therein particularised;
Particulars
The acceptance by	the second defendants occurred in conversation between the second defendants and the said Lindsay Walter Wapper at or about the time and in the circumstances particularised in sub paragraph 29.1 hereof.
with the consent of the second plaintiff and the first plaintiff the first defendant thereupon transferred and conveyed to the second defendants the whole of his legal and beneficial interest in and to the mortgaged properties and the second defendants accepted such transfer and conveyance;
Particulars
such transfer and conveyance took place by the execution and delivery of a deed entered into between the first defendant, the second defendants

and their mother at or about 4.25pm on 3 October 1991 which said deed was on 23 January 1992 registered in the Family Court of Australia at Darwin as a maintenance agreement pursuant to section 86 of the Family Law Act.	Within minutes of such transfer and conveyance the first defendant, in company with the second defendants and their said solicitor, met with the officers and said legal adviser of the plaintiffs and informed them of such transfer and conveyance.
The said Lindsay Walter Wapper thereupon orally acknowledged such transfer and conveyance on behalf of the plaintiffs and subsequently acknowledged such transfer and conveyance in writing by the endorsement made by the said Lindsay Walter Wapper upon a letter dated
3 October 1991 signed by the second defendants and addressed to the plaintiffs which was drafted and engrossed by the plaintiffs and submitted to the second defendants for signature at or about 9.00pm on 3 October 1991.

For the SB.1lle reasons given in respect of paragraph
43 of the defence of the first defendant - p. 65 -	this paragraph is struck out.

AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT
In the circumstances pleaded in this Defence, the second plaintiff was not on 7 January 1991, or at all, entitled to:
enter into possession of Killarney Station;
enter into possession of Maryfield Station;
take possession of the livestock then upon Killarney Station;
take possession of the livestock then upon Maryfield Station;
and the entry by the second plaintiff into and upon Killarney station and Maryfield Station and the seizure of the livestock thereupon on 7 January 1992, was a trespass in violation of the rights of the first defendant.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM
In the circumstances pleaded in this Defence, the second plaintiff was not on 7 January 1992, or at all, entitled to:
enter into possession of Killarney Station;
enter into possession of Maryfield Station;
take possession of the livestock then upon Killarney station;
take possession of the livestock then upon Maryfield Station;
and the entry by the second plaintiff into and upon Killarney Station and Maryfield Station and the seizure of the livestock thereupon on 7 January 1992, was a trespass in violation of the rights of the first defendant.
At all times material, the second defendants were, and remained, authorised by the first defendant to have physical possession of and to occupy Killarney Station, Maryfield Station and the Livestock thereupon and the ouster of the second defendants from Killarney Station and Maryfield Station and the seizure of the livestock thereupon by the second plaintiff on 7 January 1992 was a trespass against the rights of the second defendants.
In compelling the agents of the second plaintiff to vacate physical possession of Killarney Station and Maryfield Station and to give up possession of the livestock thereupon on 9 January 1992 the second defendants acted lawfully and within their rights and privileges.

AMENDED DEFENCE AND COUNTERCLAIM TO FIRST DEFENDANT
In the circumstances as pleaded in this Defence, the first plaintiff was not on 7 January 1992, or at all, entitled to:
enter into possession of Roper Valley Station;
enter into possession of the livestock then upon Roper Valley Station;
and the entry by the first plaintiff into and upon Roper Valley Station and the seizure of the livestock thereupon on 7 January 1992, was a trespass in violation of the rights of the first defendant.

DEFENCE OF THE SECOND DEFENDANTS IN RESPECT OF THE PLAINTIFFS' AMENDED STATEMENT OF CLAIM
In the circumstances as pleaded in this Defence, the first plaintiff was not on 7 January 1992, or at all, entitled to:
enter into possession of Roper Valley Station;
enter into possession of the livestock then upon Roper Valley station;
and the entry by the first plaintiff into and upon Roper Valley Station and the seizure of the livestock thereupon on 7 January 1992, was a trespass in violation of the rights of the first defendant.
At all times material, the second defendants were, and remained, authorised by the first defendant to have physical possession of and to occupy Roper Valley Station and the livestock thereupon and the ouster of the second defendants from Roper Valley Station and the seizure of the livestock thereupon by the first plaintiff on 7 January 1992 was a trespass against the rights of the second defendants.
In compelling the agents of the first plaintiff to vacate physical possession of Roper Valley Station and to give up possession of the livestock thereupon on
9 January 1992 the second defendants acted lawfully and within their rights and privileges.
AMENDED DEFENCE AND COUNTERCLAIM OF FIRST DEFENDANT

The first defendant repeats and relies on all the preceding paragraphs.

It is not necessary to deal with paragraph 45 in the defence of the first defendant.	As to paragraph 46, it is so general and lacking in particularity that it would be quite impossible for the plaintiffs to discern its effect and upon which matters they should seek to join issue.
Struck out.

Further, the first defendant says that the plaintiffs are all money lenders within the meaning of section 3 of the Money-Lenders Act ("the Act").

Particulars
The primary business of the plaintiffs in the Northern Territory is money-lending.
None of the plaintiffs have been exempted by the Minister pursuant to subsection 3(2) of the Act from the operation of the Act.
The amount of interest charged by the plaintiffs in respect of the money actually lent by the plaintiffs to the first defendant was excessive.
Particulars
the plaintiffs charged interest on service charges imposed by them;
the plaintiffs charged interest at rates in excess of the variable secured rates for seasonal overdrafts and term loans; and
the plaintiffs charged interest upon interest. Full particulars will be provided after discovery.
The service charges imposed by the plaintiffs upon money lent to the first defendant are excessive.
Particulars
Between 1969 and the present, the plaintiffs imposed service charges of between 5% and 20% on all moneys lent to the first defendant which were advanced by way of the payment by the plaintiffs of accounts incurred by the first defendant.
Full particulars will be provided after discovery.
In the premises:
the loan agreements (the existence of which is denied) and Mortgages are harsh and unconscionable and should be re-opened by the Court pursuant to Section 1 of the Act; and
account should be taken between the plaintiff and the first defendant; and
the first defendant should be relieved from payments of any sum in excess of the sum adjudged by the court to be fairly due; and

the Court should order the plaintiffs to repay any excess paid by the first defendant to the plaintiffs; and
the Court should set aside the Mortgages and the

loan agreements (the existence of which is denied).

Paragraphs 47 to 50 of the first defendant seek to
raise defences under the Money Lenders Act.	Reference to
s. 1 of that Act shows that before any remedy may be considered, the claimant must show, inter alia, that •the interest charged ••• is excessive, or that charges are excessive ••• and that in either case, the transaction is harsh and unconscionable, or is otherwise such that a Court of Equity would give relief ••••.	As to interest, no particulars are provided as to what is the usual and proper rate of interest against which the rate of interest actually charged will be demonstrated as being excessive.	The particulars in paragraph 48 do not go to the point; (a) and
(c) are irrelevant and (b) means nothing in this context. The same considerations apply in relation to paragraph 49. There is a failure to plead facts to show that any transaction was harsh and unconscionable or otherwise such as to afford equitable relief.	Allegations of excessive interest or charges amount to only one of the preconditions to be met for the operation of the Act.	The opening words in paragraph 50 are misleading if meant to refer to matters other than what appears in paragraphs 47, 48 and 49.	If they are intended to be restricted to those paragraphs the conclusion in subpa.ragraph (a) is irrelevant and the relief sought is not available.

Paragraphs 47 to 50 are struck out.

In or about 1974 the second plaintiff agreed to act as the stock and station agent for the first defendant ("the Agency Agreement").
Particulars
The Agency Agreement was oral and is to be implied. Insofar as the same was oral it was constituted by discussions which took place between representatives of the second plaintiff and the first defendant in or about 1974.	Insofar as the same is to be implied such implication arises from the fact that since 1974 the second plaintiff has acted as the stock and station agent for the first defendant.
These are the best particulars the first defendant is able to provide until after discovery herein.
There were terms of The Agency Agreement inter alia that the second plaintiff would:
act in the best interest of the first defendant in relation to the sale and purchase of stock, plant and equipment relating to the pastoral business;
collect and pay on behalf of the first defendant all income and expenditure in relation to the pastoral business;
account to the first defendant in relation to such receipts and payments received and/or paid by it on behalf of the first defendant in relation to the pastoral business.
Particulars
The terms are implied and arise from custom and usage, by the operation of law and the course of dealings between the plaintiffs and the first defendant.
Further and in the alternative it was the duty of the second plaintiff arising from the Agency Agreement:
to advise the first defendant with due care and skill and to act in the best interests of, the first defendant in relation to the sale and purchase of stock, plant and equipment;
not to act a.s agent of the first defendant where its interest and its duties and obligations to the first defendant conflicted;
to properly advise the first defendant in relation to the sale and purchase of stock.

In breach of the terms of The Agency Agreement set forth in paragraph 52 hereof and in breach of the duties set forth in paragraph 53 hereof the second plaintiff has failed to advise the first defendant with due care and skill and to act in the best interest of the first defendant in relation to the sale and purchase of stock, plant and equipment relating to the pastoral business.
Particulars
failing to collect and apply in reduction of the first defendant's indebtedness (if any) to the plaintiffs, moneys due to the first defendant pursuant to the Brucellosis and Tuberculosis Eradication Programme ("BTEC") from 1985 to 1990 onwards;
failing to collect and apply a reduction of the first defendant's indebtedness (if any) to the plaintiffs diesel fuel subsidies due to the first defendant;
advising the first defendant in relation to stock purchases which it knew or ought to have known were ill advised and improvident;
making payments which form part of the first defendant's indebtedness (if any) to the plaintiffs, in relation to private expenses of the first defendant particulars of which are contained in Annexure "A" hereto then charging and receiving interest thereon;
negligently advising the first defendant in relation to the purchase and sale of certain stock which purchase and sales were damaging and caused loss to the first defendant.
As a result of such breaches, the first defendant has suffered loss and damage.
Particulars
Particulars will be provided after discovery.

No particulars are given of any	incident of the relationship between a person and his •stock and station agent•.	There is no allegation relating to consideration and on the face of it the relationship contended for must be

taken to be	non-contractual and the second plaintiff to have been a gratuitous agent.	Paragraphs 52 and 53 contain between them a variety of allegations, some not dissimilar from others, going to obligations of the second plaintiff to the first defendant.	Paragraph 52 refers to terms of an agreement and paragraph 53 to duties arising from an agreement.	The distinction sought to be	made is not clear. By reference to its being a further and alternative plea, paragraph 53 seeks to distance its contents from that contained in paragraph 52.	The position is confusing.	No contract is pleaded, but two other alternative sets of obligations are said to be owed by the second plaintiff to the first defendant.	Paragraph 54 alleges that in breach of those terms and duties the second plaintiff failed to advise the first defendant with due care and skill and to act in the best interests of the first defendant in relation to the sale on purchase of stock, plant and equipment relating to the pastoral business.	There is nothing in the particulars provided at subparagraphs (a), (b) or (d) which seem to have anything to do with advice or in relation to the sale and purchase of stock, plant and equipment whether those two things are taken conjunctively or disjunctively. That leads to subparagraphs (c) and (e) for which no particulars are given.	These pleas suffer from the same problems as those contained in paragraphs 29 to 36, a confusion of ideas rolled into an overall attack which lacks sufficient definition and particularity to enable the second plaintiff or any of them to plead in such a way as will properly

define the issues for the benefit of the parties and of the
Court.	Struck out.

AND THE FIRST DEFENDANT COUNTERCLAIMS FOR:

a declaration that the Mortgages are each void and of no effect;
alternatively, a declaration that the Mortgages are harsh and unconscionable;
an order that the Mortgages be set aside and the plaintiffs be restrained from enforcing or retaining the benefit of all or any of them;
restitution of the parties quo ante;
damages for breach of contract and breach of duty of care;
orders pursuant to Section 1 of the Money Lenders Act that:
the loan agreements (the existence of which is denied) and the Mortgages be re-opened by the Court pursuant to section 1 of the Act; and
account taken between the plaintiff and the first defendant; and
the first defendant be relieved from payments of any sum in excess of the sum adjudged by the court to be fairly due; and
the plaintiffs repay any excess paid by the first defendant to the plaintiffs; and
the Mortgages and the loan agreements (the existence of which is denied) be set aside;
a full and proper account be taken of all financial transactions between the plaintiffs and the first defendant;
interest; and
costs.