Marshall v Birrinbar Pty Limited [2008] NSWDC 125

New South Wales District Court

CITATION: Marshall v Birrinbar Pty Limited [2008] NSWDC 125

HEARING DATE(S): 27, 28, and 31 March, 30 June and 1 July 2008

JUDGMENT DATE: 15 July 2008

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: 1. Judgment for the plaintiffs against the first defendant for $41,543.23, with costs 2. Judgment for the second and third defendants against the plaintiffs, with costs

CATCHWORDS: BAILMENT - agistment of cattle for reward – full complement of cattle agisted not returned after demands by owners - bailor failed to discharge onus of proof that loss of the missing cattle was not due to any failure by it to exercise reasonable skill and care

Hill v Reglon Pty Limited [2007] NSWCA 295 at [46] - [47] Hobbs v Petersham Transport Co Pty Ltd [1971] HCA 26 CASES CITED: Nationwide News Pty Ltd v Naidu (No 2) [2008] NSWCA 71 at [16] – [18] Terry Hogan Prestige Cars Pty Limited v Opera Investments Pty Limited [2006] NSWCA 139 at [13] Turner v Stallibrass [1898] 1 QB 56 at 59

Garry Brent Marshall (First Plaintiff) Kerrie Marshall (Second Plaintiff) PARTIES: Birrinbar Pty Limited (First Defendant) Jaime Anneliese Elaine Wright (Second Defendant) Mark McMahon (Third Defendant)

FILE NUMBER(S): 1478/06

COUNSEL: Each of the parties was unrepresented

SOLICITORS: Each of the parties was unrepresented

JUDGMENT

The dispute 1. On 11 January 2005 some 150 head of cattle belonging to the plaintiffs, Gary and Kerrie Marshall, were delivered to the first defendant's property, 'Birrinbar', for agistment, namely 133 female cattle, 1 bull and 16 calves. A number of the females were cows, some of which calved during the agistment. During December 2005 and the months following, the Marshalls made various demands for the return of their cattle together with any calves born during the agistment. The first defendant initially refused to return any cattle and only later returned some cattle after these proceedings were commenced. 174 surviving cattle were transported to Inverell where they were sold at auction on 20 April 2006. The Marshalls claimed damages from the first defendant, as a bailee for reward, in respect of some 95 cows they alleged were never returned.