Big Top Hereford Pty Ltd v Gavin Thomas as Trustee of the Bankrupt Estate of Douglas Keith Tyler [2006] NSWSC 1466

New South Wales Supreme Court

CITATION : Big Top Hereford Pty Ltd v Gavin Thomas as Trustee of the Bankrupt Estate of Douglas Keith Tyler [2006] NSWSC 1466

HEARING DATE(S) : 9 November 2006 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 11/09/2006

DECISION : Trustee's 40% of herd includes the 4 cattle who died during his removal of them from property. Direct Trustee to pay 60% of plaintiff BTH's costs.

CATCHWORDS : BAILMENT – Bailee de son tort liable for losses save to extent shown to be without his fault. COSTS – competing claims to herd of cattle – where herd found to be of mixed ownership – where litigation triggered by trustee in bankruptcy, proposed sale of whole herd but some litigation probably inevitable to separate mixture – where neither party totally successful.

LEGISLATION CITED : Conveyancing Act 1919 (NSW), s 66G

PARTIES : Big Top Hereford Pty Ltd (plaintiff) Gavin Thomas as Trustee for the Bankrupt Estate of Douglas Keith Tyler (defendant)

FILE NUMBER(S) : SC 4904/06

COUNSEL : Mr N Potts (plaintiff) Mr S Golledge (defendant)

SOLICITORS : Savage & Love Solicitors (plaintiff) The Argyle Partnership (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Thursday 9 November 2006

4904/06 Big Top Hereford Pty Limited v Gavin Thomas as Trustee of the Bankrupt Estate of Douglas Keith Tyler JUDGMENT (ex tempore) 1 HIS HONOUR: On 6 November 2006 I delivered reasons for judgment in which I concluded that, as between themselves, the parties were entitled to the herd of cattle mustered from the property Big Top in September 2006, in proportions the plaintiff BTH as to 60 percent, and the defendant trustee as to 40 percent. I indicated that I would make a declaration to that effect, that it would be necessary for the trustee to account to BTH for 60 percent of the proceeds of the sales which had so far taken place, and for the remaining cattle to be divided in proportions 60:40 between the parties, or alternatively sold and the proceeds divided. I directed that the parties bring in short minutes to give effect to that judgment, at which time the question of costs was to be argued.