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. 2 The parties have now brought in short minutes, in respect of which there are two items which require resolution. The first is how cattle which have died during or after their removal from the property Big Top should be accounted for, and the second is the question of costs. 3 At the hearing, there was evidence that four cattle have died, one at the Grafton sale yards and three in the course of being transported to or shortly after arrival at the property 'Seelands', on which they have been agisted since 18 September 2006. There is no evidence before me today of any further deaths. 4 From the time of the musters, the trustee made himself a bailee (in effect, de son tort) of those cattle to which BTH was entitled, and as such is strictly liable for any losses of cattle, unless and save to the extent that he can show that those issues were without fault or negligence on his part. 5 There is no evidence of unusual deaths since the cattle have been settled in 'Seelands', and I am prepared to infer, in the absence of evidence, that deaths which have occurred since not long after their arrival there should be regarded as deaths which would have occurred in the natural course in any event, and are not attributable to negligence of the trustee. However, the four deaths in this herd in the space of a day or two while they were being transported to 'Seelands' falls within a different category, and I am not prepared to draw the same inference in that respect. It follows that the trustee's 40 percent should include the four animals which died in the course of their removal by the trustee from Big Top to Seelands. 6 So far as costs are concerned, the forensic stances of the parties were that each, formally at least, contended that it was entitled to the whole herd. Although there were hints from time to time in the trustee's case of an acknowledgement that BTH might be entitled to a very small portion of the herd, I do not understand there ever to have been a formal concession to that effect. Essentially what fell for resolution were competing claims by the two parties to the entire herd. 7 Ultimately neither party succeeded in whole. However, BTH obtained a substantial measure of success in obtaining a declaration and consequential relief on the basis that it was entitled to 60 percent of the herd. BTH was compelled to bring proceedings because, if it had not done so, the trustee would have sold the whole herd and kept the whole of the proceeds. The litigation was precipitated by the trustee removing the cattle for sale. 8 Against that, the trustee did for some months prior to mustering the cattle call for proof of Big Top's claim to some of the cattle, and little was forthcoming in that respect. The muster and removal was not entirely unforeshadowed, since the trustee had indicated that he proposed to sell the cattle if evidence of BTH's entitlement was not produced. And BTH has not been wholly successful: it has established an entitlement to only 60% and not the whole of the herd. However, the invoice from Chris Patterson, evidencing the purchase by BTH of 64 cattle, called for a more expansive concession than the trustee ever made. 9 The case bears some similarity to a claim under the Conveyancing Act, s 66G, for the appointment of trustees for sale of jointly held property. The analogy is imperfect, because of the necessity for BTH to resort to litigation to prevent the sale and conversion of its property; but some litigation to resolve the competing claims of ownership and entitlement to possession of the herd was probably inevitable. 10 I have come to the conclusion that the plaintiff should recover some, but not all, of its costs. Although apportionment of costs is always an arbitrary exercise, the plaintiff has succeeded to the extent of about 60 percent of its claim, and that that provides the best indication, rough as it is, as to its entitlement as to costs. 11 The various considerations to which I have referred as favouring the trustee are a complete answer to the plaintiff's claim for indemnity costs. 12 In paragraph 1, subparagraph 2 of the short minutes, I will insert the word "four" at the end of the first line, so that it will read "those four animals", and I will delete the words "after, or" in the second line, so that it will read as a whole "with the defendant's proportion to include those four animals which died during the course of their removal", etcetera. I will delete the first paragraph 5. In the second paragraph 5, I will insert "60 percent of" after the word "pay", and I will delete the words "on an indemnity basis". I will amend paragraph 6 to read: "Liberty granted to either party to apply on 48 hours notice in the event of any difficulty arising in the implementation of these orders." 13 Subject to those amendments I make declarations and orders in accordance with paragraphs 1, 2, 3, 5, and 6 of the document entitled "Short Minutes of Order", initialled by me, dated this day and placed with the papers. I order that the sum of $4,500 paid into Court by the plaintiff, together with any interest which has accrued thereon, be paid out to the plaintiff forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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