FEDERAL COURT OF AUSTRALIA Northern Pastoral Development Company v Banibi Pty Ltd [2011] FCA 610 Citation: Northern Pastoral Development Company v Banibi Pty Ltd [2011] FCA 610 Parties: NORTHERN PASTORAL DEVELOPMENT COMPANY AS TRUSTEE FOR THE ELSEY PASTORAL TRUST v BANIBI PTY LTD File number: NTD 35 of 2010 Judge: MANSFIELD J Date of judgment: 24 May 2011 Date of hearing: 24 May 2011 Place: Darwin Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 12 Counsel for the Applicant: A Wyvill SC Solicitor for the Applicant: Paul Walsh Barrister & Solicitor Counsel for the Respondent: The Respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 35 of 2010 BETWEEN: NORTHERN PASTORAL DEVELOPMENT COMPANY AS TRUSTEE FOR THE ELSEY PASTORAL TRUST Applicant AND: BANIBI PTY LTD Respondent JUDGE: MANSFIELD J DATE OF ORDER: 24 MAY 2011 WHERE MADE: DARWIN THE COURT ORDERS THAT: 1. There be summary judgment for the Applicant for its claim in paragraph 1 of the Applicant's application. 2. The Respondent is restrained until 30 September 2011 from mustering or in any way interfering with or attempting to muster any cattle on Elsey Station in the Northern Territory, including any cattle which belong to the Respondent or which the Respondent claims belong to it. 3. The Respondent to pay the Applicant's costs of and incidental to these proceedings including reserved costs to be taxed if not agreed. 4. The sum of $7,500 paid into Court by the Applicant as referred to in paragraph 2 of the Order of 7 March 2011 and any interest which has accrued thereon (but less any taxes, bank fees or charges or costs or fees payable to the Registrar) be paid out to the Applicant. 5. Liberty to the Australian and New Zealand Banking Group Limited or to Banibi Pty Ltd to apply on seven days' notice, and provide that notice by no later than 23 September 2011 in the event that there is a dispute between the Applicant and that Bank (on behalf of the Respondent) concerning the proper allocation of cattle to be mustered on Elsey Station. 6. Direct this order be served upon Permanent Custodians Limited as Trustee under the Master Trust Deed establishing the RURAL Program and Australia and New Zealand Banking Group Limited by forwarding a copy to them by email to sforrest@qld.gadens.com.au within 14 days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 35 of 2010 BETWEEN: NORTHERN PASTORAL DEVELOPMENT COMPANY AS TRUSTEE FOR THE ELSEY PASTORAL TRUST Applicant AND: BANIBI PTY LTD Respondent JUDGE: MANSFIELD J DATE: 24 MAY 2011 PLACE: DARWIN REASONS FOR JUDGMENT 1 The applicant commenced these proceedings on 29 October 2010, seeking injunctive relief to restrain the respondent from mustering cattle owned by the respondent and further cattle presently in the care and control of the applicant at Elsey Station in the Northern Territory. 2 Certain interlocutory orders were made to which it is not necessary now to refer. The applicant has applied by motion of 18 May 2011 for summary judgment. It wishes the proceedings to be brought to an end so that it may proceed to muster and account for the cattle which are on Elsey Station. It wishes to fairly attribute the mustered cattle to those which it has an entitlement to itself, and those to which the respondent is entitled (the Banibi herd). It is desirable to make final orders which will ensure the prompt resolution of the ongoing issues, provided the evidence supports a summary judgment. 3 The respondent has not appeared at the hearing today. I am satisfied that it has been duly served with the motion of 18 May 2011, and has chosen not to appear. 4 On the material before me, it is plain that there is a significant herd or herds of cattle on Elsey Station, that the applicant has the occupation of Elsey Station, and that the applicant manages those herds under a grazing licence from the Mangarrayi Aboriginal Land Trust, the owner of Elsey Station. It has been determined in separate proceedings that the respondent has no lawful basis to enter onto Elsey Station and take possession of its cattle. The effect of these orders will enable the applicant, in an uncontentious environment, to muster the herd or herds and resolve the ownership of the cattle on Elsey Station. 5 The affidavit of John O'Brien sworn on 18 May 2011, and in particular the document which is annexure JOB1 to that affidavit, sets out a proposed procedure to identify the Banibi herd on Elsey Station. It seems to me to propose a fair and reasonable procedure in taking account of the interests of the applicant, the respondent and of the stock mortgagee of the Banibi herd. It involves the engagement of an independent person for that purpose. 6 In my view, given the history of this matter as disclosed in the affidavits, and given the present circumstances, it is desirable that the entitlement of the applicant to enter onto or to remain on Elsey Station be unimpeded by the respondent so that it may proceed in the manner which it intends. This is an entirely appropriate course to take. There is no foundation for thinking that there is any dispute about the applicant's entitlements. There is no foundation for doubting the applicant's good faith in proposing to proceed in the manner in which it wishes to proceed. I cannot see any reason why the injunctive orders sought should not be made, together with supporting orders. 7 I propose to grant summary judgment in the terms of the injunction sought in the initial application. That will restrain the respondent from mustering or otherwise interfering with cattle on Elsey Station. It is appropriate that an injunction should be for a limited time. On the evidence that the proposed muster is to take place within the next few months, I propose to grant the injunction sought to 30 September 2011. I am satisfied on the evidence that the muster proposed will have taken place by that time. 8 I will also order that the applicant be repaid the sum of $7,500 earlier paid into Court, together with any accumulated interest, in accordance with an earlier undertaking to support an interlocutory injunctive order. In addition, the applicant should recover its costs of the proceedings. 9 There are also two issues that need to be separately addressed and reflected in the orders. 10 First, senior counsel for the applicant accepts that, in the circumstances, it is not inappropriate to ensure that notification of these orders is made to Permanent Custodians Limited as Trustee under the Master Trust Deed establishing the RURAL Program and also to Australia and New Zealand Banking Group Limited (ANZ). That is because, on the material to which my attention has been drawn, including an exchange of correspondence between solicitors for the applicant and solicitors for those entities, as well as on other material, it appears that there is a stock mortgage granted over the Banibi herd to ANZ or the two entities together. It also appears that the respondent has accepted that the stock mortgage has been activated so that, in practical terms, the Banibi herd, when it is mustered, will be available to ANZ or to those two entities under the stock mortgage. It is desirable that they formally be notified of these orders so that those entities have no misunderstanding about the terms of the orders affecting the respondent. 11 Second, apparently there remains a potential for some disagreement between those entities on behalf of the respondent under the stock mortgage and the applicant as to the extent to which certain cattle may or not be part of the Banibi herd as distinct from the herd of the applicant. It seems to me that it would be appropriate to allow liberty to apply to ANZ in its own name or alternatively, as entitled under the stock mortgage, in the name of the respondent, to apply to the Court for directions in the event that such a dispute arises and cannot be resolved. I have no reason to think that that will occur, but it is appropriate to keep these proceedings alive for a period of time to enable any such dispute to be brought before the Court, as a convenient means of resolving it without undue cost. 12 I will make orders accordingly. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 7 June 2011