District Court New South Wales Medium Neutral Citation: Lawrence Nock v Robert Maddern [2017] NSWDC 216 Hearing dates: 20-22 June 2017 Date of orders: 18 August 2017 Decision date: 28 July 2017 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and judgment for the plaintiff. For orders see [103] Catchwords: Agreement for agistment of cattle; promissory estoppel by representation Legislation Cited: Limitation Act 1987 Local Land Services Act 2013 Uniform Civil Procedure Rules 2005 Civil Procedure Act 2005 Cases Cited: Carrier v Georges [2013] NSWSC 401 DHJPM Pty Limited v Blackthorne Resources [2011] NSWCA 348 Empirnall Holdings Pty Limited v Machon Paull Partners Pty Limited (1988) 14 NSWLR 523 Gerace v Auzhair Supplies Pty Limited (2014) 87 NSWLR 435; [2014] NSWCA 181 Jones v Dunkel (1959) 101 CLR 298 Legione v Hateley (1983) 152 CLR 406 Orr v Ford (1988) 167 CLR 316 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Lawrence Nock (Plaintiff) Robert Maddern (Defendant) Representation: Counsel: T Crispin (Plaintiff) I Coleman SC (Defendant) Solicitors: Concorde Legal Creagh and Creagh File Number(s): 14/101954 Publication restriction: Nil Judgment The plaintiff's claim 1. By an Amended Statement of Claim ("ASOC") filed on 14 April 2016, the plaintiff claims the sum of $367,296.00 plus interest and costs, alleged to be owing by the defendant by way of agistment fees for stock owned by the defendant which were agisted on the plaintiff's property at Gunning. 2. The plaintiff's claim is pleaded by way of damages for breach of contract, allegedly made between the parties on 24 January 2010. Alternatively, the plaintiff pleads that certain representations were made by the defendant on 24 January 2010, to the effect "that he agreed to the new terms", that the plaintiff relied on those representations and suffered detriment. 3. It is further pleaded that by an email dated 20 February 2013, the defendant made representations to the plaintiff "acknowledging the debt and indicating he would resume payments". The plaintiff pleaded that he relied upon those representations and suffered detriment. In those circumstances, the plaintiff claimed that it would be unconscionable for the defendant not to be held to the representations made, either on 24 January 2010, or 20 February 2013. 4. In an Amended Defence to the ASOC filed on 16 June 2016, the defendant pleaded that from 1986 he and the plaintiff (together with the plaintiff's former partner), had an arrangement relating to the agistment of the defendant's stock on the plaintiff's property at Gunning. The arrangement involved the defendant carrying out certain work on the property and incurring expense in respect of the placing of chattels on that property. Between 2004 and 2010, the defendant pleaded that the plaintiff made no requests for payment of agistment fees and at no time did he allege that any such fees were "in arrears". 5. The defendant denied that he accepted by email dated 24 January 2010, the terms offered by the plaintiff in his email dated 11 January 2010 for an agistment agreement. He denied that the parties entered into an agreement in writing, orally, or by conduct, and thereafter, the defendant assumed that "the arrangement" previously outlined would continue to apply. 6. The defendant denied that the plaintiff relied upon "the representations" referred to in the ASOC, or that he suffered detriment as alleged, and particularised in the ASOC. The defendant denied any unconscionability as asserted by the plaintiff. 7. The defendant further pleaded that the plaintiff's claim is barred pursuant to s 14 of the Limitation Act 1987 from recovering monies alleged to be payable by way of damages for breach of contract or otherwise alleged to have occurred prior to 2 April 2008. The defendant pleaded further the Defence of laches, but otherwise admitted that he was indebted to the plaintiff for a sum not exceeding $32,240.00 with respect to the agistment of cattle on the plaintiff's property between January 2010 and 2014, when the defendant ceased to agist cattle on the property. Background to the dispute 1. The following summary of the evidence includes my findings of fact, unless otherwise indicated. 2. In 1986 the plaintiff and his then partner began an agistment arrangement with the defendant for him to agist his cattle on the plaintiff's property. The plaintiff's partnership dissolved in 1999 and thereafter the 1986 agistment arrangement continued between the plaintiff and the defendant. 3. The defendant ceased making agistment payments in July 2004. Thereafter, the defendant's stock remained on the plaintiff's property and the defendant carried out certain works, for example, fencing work on the property. From 2000, the plaintiff had commenced to plant pine plantations on parts of the property, thereby reducing the grazing portion of the property. Also built on the property was a motorcycle track, which again, further reduced the grazing area of the property. 4. No payments were made by way of agistment fees between 2004 and 2010. In 2010, following an exchange of emails between the plaintiff and defendant, referred to below, the defendant made two payments, totalling $2,200.00, by way of agistment fees. No further payments were made and on 13 July 2012, the plaintiff sent the first of a number of emails to the defendant. The email communication between the plaintiff and defendant continued throughout 2013 and 2014 until March, when the defendant removed his remaining stock from the plaintiff's property. The plaintiff then commenced the proceedings in April 2014. The issues to be determined 1. The following issues are to be determined: 1. Whether the plaintiff and defendant entered into a contract on 24 January 2010. 2. If so, what were the terms of that contract? 3. If so, did the defendant breach the contract by failing to pay agistment fees? 4. If not, is the defendant bound by a promissory estoppel by representation made by email dated 24 January 2010 and his subsequent conduct in continuing to agist cattle on the plaintiff's property? 5. If so, did the plaintiff rely upon such representations made by the defendant and suffer detriment? 6. Alternatively, is the plaintiff bound by promissory estoppel arising from representations he made on 20 February 2013? 7. If so, did the plaintiff rely on such representations and thereby suffer detriment? 8. What damages, if any, flow from either the defendant's breach of contract, or the promissory estoppel arising on either 24 January 2010 or 20 February 2013? The evidence relied on by the plaintiff 1. The plaintiff relied on two affidavits sworn by him on 29 October 2015 and 21 December 2014, together with a tender bundle which became Ex A (A.1 – A.44). As the determination of the principal issues to be determined involved the proper characterisation of the emails referred to above, it is convenient to set out first, in chronological order, a summary of extracts from those as follows: 1. Email from the plaintiff to the defendant dated 11 January 2010: "I've been giving our relationship in respect of the agistment at Gunning a lot of thought over the last couple of years. The situation has caused me considerable annoyance, especially when I have to source money to pay bills for services I have consumed in respect of the property. On a number of occasions I have pointed out to you that the absence of any agistment income presents problems for me. You have acknowledged the problem and suggested that you should try to do something about getting some of your debt reduced. So far nothing has happened. I have decided that I need to make something happen. I have been conscious of the drought conditions which have now persisted for many consecutive years. You must surely be aware that the agistment rates that we have been operating with were set back in the 1980's. Some allowance was made during the intervening period for the maintenance of fences and weed control which is at one stage undertaken by you as part of the arrangement. That appears to have declined markedly during the drought. … What I have in mind is to set a new agistment rate at close to a real commercial rate. To provide a continuing potential benefit to you, in light of our long association, I would be prepared to allow a 20% discount when the monthly agistment is paid within two weeks of the end of the month in which the debt was incurred. Agistment outstanding for more than one month should accrue at the full commercial rate and should also be subject to an interest rate of 10% per annum, which is about the rate at which I am expected to pay interest in the current market. Although the prompt settlement discount is probably unnecessarily generous and commercially stupid, I remain so inclined. This should enable you to continue your access to very economically charged agistment. … I want to reach a workable arrangement with you in respect of both settlement of the outstanding debt and ongoing payment of agistment as the debt occurs into the future. The establishment of a new arrangement will provide a trigger for recovery of interest on outstanding debts. I think it would be quite fair for the new arrangement to impose the 10% interest on outstanding agistment debt for new debts, as well as for past debts remaining unpaid at the commencement of the new agreement on 1 April 2010. Clearly you are in serious default of any reasonable understanding of our agreement and it is my view that any lead time rights, which I might otherwise like to apply to changes to the agistment agreement, are negated by default. Unless we agree on some alternative arrangement, the agistment arrangements for Gunning will change as from 31 March 2010. I am prepared to consider other arrangements which might be more workable for you. …" 1. Email from the defendant to the plaintiff dated 24 January 2010: "I had intended to meet and discuss the situation but a problem with the vehicle meant I was without transport this last week, but have got back to Gunning now to do some fencing. … I am planning to spend more time at Gunning (say 3 days once a fortnight to cut transport costs and time), and restore the fencing to the level I used to have it when in Canberra. I do wish to go on using the property. I have more time than I do money. I will make a time to meet with you soon." 1. Email from plaintiff to defendant dated 25 January 2010: "Like you I have the problem of not enough funds and more time but still not enough to do all the necessary maintenance on Gunning at the rate I can now work." 1. Email from plaintiff to defendant dated 13 July 2012: "A couple of years ago I expressed my concern about the agistment at Gunning. There have been no regular payments since about 2003. The accumulated debt is very substantial and the interest accruing on that debt is now also of significant proportions. It has never been my intention to simply provide you with about $1,000,000.00 of agricultural land resource at no cost. Nor do I believe that such a situation has ever been your intention. I have always expected that eventually you will honour the debt that you have incurred. As it approaches huge proportions it becomes a more daunting task. … What I would like you to do is to think about your agistment debt and give some thought to how you are going to honour your obligations to myself. I think it is much better that I leave this in your hands in the first instance. I am willing to consider any reasonable proposal you have to put forward. I would like to have your proposal in my hands and under serious consideration by about the end of July. If I have not heard from you by that time, I cannot see how much I could do other than start taking action to protect my position in a formal way." 1. Email from plaintiff to defendant dated 25 October 2012: "I've tried unsuccessfully, on a number of occasions to get you to respond on this matter. It is now several months since I last sent you a message. … Despite the very fair agistment rates applicable, you have paid the monies due only when it suited you. On several occasions last century you fell well behind in payment of the agistment due. Until early this century you have eventually honoured the debts when you became able to do so. I do not think the a few thousand dollars paid during a period of 10 years when your debt has been running at around $10,000.00 per annum or more, represents any reasonable approach to your responsibilities to me (sic). I've extended great patience over the last 10 years or so when drought conditions have been severe. It seems that you have been quite happy to take full advantage of that reasonableness. It is now time for you to start doing something about respecting that consideration which has been extended to you and honouring your commitment to me. The appropriate response from you is a very prompt response indicating your position. I am prepared to consider entering into some form of arrangement with you for eventual recovery of the debt, but I'm not prepared to go down that path if I'm forced to commence formal proceedings. …" 1. Email from the plaintiff to defendant dated 6 November 2012: "The reason for my previous attempts to contact you remains the outstanding agistment situation. … The debt is now so great that I consider it likely to cause you even more distress than it causes me. … You are currently agisting in accordance with 2010 guidelines to which you agreed. As part of those guidelines, the interest on the outstanding debt is 10%. The base amount of the debt is well in excess of $100,000.00. This is a ridiculously low rate of interest for an unsecured debt which the debtor has given no indication of being prepared or able to repay. Willingness to repay the debt if it possible, is not a valid consideration in this context. … It is important to me that you get in touch with me promptly so we can try to work out a solution. …" 1. Email from the plaintiff to the defendant dated 9 November 2012: "I've had some difficulty working out what your actual agistment liability is. You have not provided me with any actual numbers of stock on the property for a long time. I have, however, tried to work out stock numbers when I've been there. From time to time numbers seem to have been down and on other occasions numbers seem to have been very high. This would be quite reasonable even if there had not been much actual movement, as on some occasions when cattle have been in the pine forest or in high grass in the creek, it has been impossible to do an accurate count. Pre-2000, your agistment payments range from just over $10,000.00 to just under $20,000.00 per annum. The actual agistment paid since the end of last century was limited to the first three years. The amounts paid were $26,000.00 +, and in the following two years almost $15,000.00 and just over $14,000.00. The first year was perhaps a bit unusual. The subsequent two years seem to be pretty normal. In the absence of any better figure, I have taken the $14,000.00 figure as a reasonable annual figure for a year on year calculation. In January 2010, I submitted to you a revised arrangement for agistment. Continued agistment on my property required that you pay outstanding agistment due or accept it as a current debt which would henceforth accrue interest at a rate of 10%. I also set new agistment rates for stock agisted on my property. Apart from one payment of $2,200.00 in 2010/2011, there have been no payments made by you. You did at the time you took on the new arrangements, advise me that you intended to make arrangements to meet with me to discuss what could be done. You have never attempted to do so and my efforts to contact you have not been very successful either. … By the end of June 2010, the accumulated debt was not less than $90,000.00. Interest of 10% was applied for only the three months from the end of March. A calculation of the agistment due under the new agistment rates puts the annual agistment due at about $30,000.00. That has now been applicable for over two years, still with absolutely no contributions from you. Not surprisingly the debt is compounding rapidly. It is now running at in excess of $180,000.00. 1. A letter of demand from the plaintiff to the defendant dated 28 January 2013. In this letter the plaintiff outlined that his preferred option was repayment of the debt in full by the defendant. He went on to state: "An option which I do not really want, but am prepared to consider, is for you to provide security for the debt in the form of a mortgage over assets such as your Mt Alfred properties, and for me to carry the debt and its accumulation, until such time as you no longer wish to operate your cattle grazing business. If such an arrangement is not acceptable to you or possible for whatever reason, I can see no option but to immediate commencement of debt recovery action." 1. Email from the defendant to the plaintiff dated 20 February 2013: 'Points to consider re meeting (1) I agree I need to pay you. I'm arranging to pay a signif. amt soon and resume monthly payment. What is your current account details? (2) I've not got rich at your expense. My family are not going to benefit. I do appreciate your generosity in allowing me the use of Gunning … No one made money in southern Aust. from 2000/2009 out of grazing or cropping, whether it was a drought or climate change is academic. …" 1. Email from plaintiff to the defendant dated 20 February 2013: "My assessment of your likely situation was and probably still is that payment of what is owed is going to impose on you a significant burden. It will also generate substantial pressure on you personally in terms of worry, and perhaps sacrifices which you may need to make. I do not really want to do this to someone with whom I have had an otherwise acceptable business relationship over a period of more than 2 decades. I do not want to be even partly responsible for sending you to an early grave just to get money. I don't work that way for preference and if I can find a workable alternative I'm very willing to consider it. My attempts to do so led me to what I have already suggested. I'd prefer to have the money now but I don't it will be easy for you to satisfy my preference. I do not want to have such a large outstanding debt – whatever the actual amount is, it is very substantial at this time – remain as an unsecured debt with no reasonable knowledge of when or if it will ever be paid. If you are happy to get payment sorted out then let's go with that. If you are uncomfortable because doing so will place you under serious pressure, then I would be happy to work out a different way of removing my worries without imposing the pressure on you. I have already indicated I think how this might be done. We need to talk and sooner rather than later about options. …" 1. Email from plaintiff to the defendant dated 28 August 2013: "It is now some considerable time since I've last contacted you. At that time I was seeking to arrange a meeting to discuss how we might address the very considerable debt you have in respect of the agistment on my property at Gunning. Your response as I recall it was that you hoped to be able to do something about reducing the debt in the near future. Since then I've heard nothing from you which I find quite disappointing. … Please get your head around the situation and do something about setting a date for discussions about the situation. I will make myself available for a meeting at Gunning which should create the minimum disruption for you in your normal activities." Attached to that email was a calculation of debt owing in the sum of $262,877.00. 1. Email from plaintiff to the defendant dated 14 September 2013. The email acknowledged that nothing had happened since the plaintiff's last email. He stated: "When I sent the message late last month, I also advised you that I had been asked by other livestock owners about putting stock on the property. Last week I was again approached by someone looking to agist animals and interest in doing so at Gunning. In the absence of any response from you to my message of two weeks earlier, I went to Gunning on Friday and showed him what is available. He is interested in moving his livestock onto the property. I advised him that although I am not at all pleased about the way our current arrangements are proceeding, I do not wish, after such a long association with you, to terminate what has been a reasonably acceptable arrangement (except for the absence of payment for the services you have consumed)." 1. Email from plaintiff to the defendant dated 23 September 2013 enclosing debt calculation alleging $265,045.00 outstanding, and letter of demand dated 22 September 2013. 2. Email from defendant to the plaintiff dated 24 September 2013: "I see your email of yesterday, would ask you to ease off for a little while longer, I know you have been patient for a long while …" The defendant then set out certain health problems he had been suffering. 1. Email from plaintiff to the defendant dated 24 September 2013. It concluded: "I've put forward to you a proposal which would remove from me the concern about the unsecured debt which you currently owe to me. I've indicated that I'm prepared to come to an agreement about how future agistment obligations might be met if you intend to continue to use my property at Gunning. The few responses I have received from you have totally avoided any attempt to deal with what I have proposed. If you want me to deal with what you are seeking, I think it is about time that you address what I am seeking in a meaningful and committed way." 1. Email from plaintiff to the defendant dated 1 November 2013. "I did set a deadline for you to come up with a response to my options for recovering the outstanding debt. You ask that I be patient. The deadline has now well and truly passed and I have heard nothing more from you. I'm prepared to accept no response as meaning no intention to do anything until I commence legal action …" 1. Email from plaintiff to the defendant dated 12 November 2013 attaching termination notice, as follows: 'I formally give you notice that as of 31 Dec 2013 the arrangement between us for the agistment of your cattle on my property will terminate. I expect you to arrange for all of your animals to be removed from my property by that date." 1. Email from plaintiff to the defendant dated 4 December 2013" "You still have not bothered to communicate with me about this and I see no real reason to do so unless you were going to put forward some substantive proposal. I've advised another livestock owner that as of 31 December 2013, I expect my property to be free of your animals and available for agistment arrangements with him to commence." 1. Email from defendant to the plaintiff dated 10 December 2013, in which the defendant agreed the following: "Cattle (1) Not to bring more stock on. (2) To progressively remove them starting on or before January 15 2014. (3) To have all stock removed by March 31 2014." The defendant also agreed to: "Remove and vacate the property by 31 March unless another mutual agreeable arrangement is reached for specific items." 1. Email from defendant to the plaintiff dated 11 December 2013. The defendant emailed to the plaintiff advising that he would "look into the implications of a registered v unregistered mortgage". 2. Email from defendant to the plaintiff dated 14 December 2013 advising "an unregistered 2nd mortgage would look be a good option for both of us" (sic) 3. Email from plaintiff to the defendant dated 14 December 2013 stating "unregistered 2nd mortgage is a good way to go". 4. Email from plaintiff to the defendant dated 19 December 2013 re outstanding agistment fee and estimated debt of just over $265,000.00. Further letter enclosed re proposed arrangements for securing the debt. 5. Email from plaintiff to the defendant dated 1 January 2014 requesting defendant's attention to get "the arrangements agreed and in place for the future securing of the debt". 6. Email from defendant to the plaintiff dated 7 January 2014 stating as follows: "Let's start with what we agree on, on an informal basis and without prejudice. I will have the cattle off by March 31 2014. I will pay past agistment. I will secure the debt with an unregistered mortgage. The rates you propose from 31/03/10 on are not possible to generate by grazing cattle on the property. Attached is a modified copy of your spreadsheet. The sum of the agistment money you are asking for is $170,003.00. … I believe I have actually paid the agistment up to June 2004. The annual rate has fluctuated around $12,000.00 to $14,000.00 being at the high end. On the gear on your property there is I think a quantity of mesh, train line, heavy angle iron, black pipe, a 12 foot set of disc arrows, I thought more like $10,000.00 worth. I appreciate that we need to formalise the position in a timely manner as expeditiously as possible." 1. Email from plaintiff to the defendant dated 7 January 2014 stating: "Your proposal to vary the 2010 arrangements is not really welcome. …' The defendant amended the plaintiff's debt calculation by adding the following two lines: "Sum of agistment $170,003.00 Ongoing interest rate at say 5% say pa $13,250.26" 1. Email from plaintiff to the defendant dated 12 February 2014 advising adjustment of $13,000.00 for chattels left on the property. 2. Email from plaintiff to the defendant dated 12 March 2014 regarding outstanding agistment fees. 3. Email from defendant to the plaintiff dated 18 March 2014 advising that he was making every effort to get the cattle off Gunning by the end of March as promised. 4. Email from the plaintiff to the defendant dated18 March 2014: "Getting the rest of the animals off Gunning is not as important to me at this stage as getting the paperwork sorted out." The plaintiff's evidence 1. The plaintiff gave evidence that he had, since 1986, had an agistment arrangement with the defendant. That arrangement was for a fee of $2.50 per head of adult cattle, and $1.50 for cattle up to 6 months, when they became subject to adult rates. The agreement was firstly in partnership, which was dissolved in 1999, when the plaintiff became the sole of the property. The agistment agreement with the defendant was then allowed to run "as it had been up until that time". 2. The plaintiff gave evidence that the defendant had periods when he was unable to pay the agistment on a monthly basis. The plaintiff was prepared to accept non-payment on the basis that he would eventually be paid. Prior to June 2004, the plaintiff held money on account of agistment fees on behalf of the defendant, and was authorised to withdraw monies from time to time from that account. 3. Between 2004 and 2010, the plaintiff received no payment of agistment fees from the defendant. The reason for that is found in the plaintiff's email to the defendant dated 11 January 2010 (see [13(1)] above), where the plaintiff stated: "I've been conscious of the drought conditions which have now persisted for many consecutive years." 1. The plaintiff gave evidence that at the beginning of 2010, there were outstanding agistment fees. That led to him forwarding to the defendant his email dated 11 January 2010. When he received the defendant's reply email dated 24 January 2010, the plaintiff took no action. He said: "I decided not to go ahead with any further recovery action because I felt that was covered by these terms of the agreement that I put forward to him." 1. The plaintiff gave evidence that he received two payments in June-July of 2010 totalling $2,200.00. He treated that as a payment that was due. 2. The plaintiff, in the course of his evidence in chief, then read two affidavits dated 21 December 2014 and 29 October 2015. 3. By 19 December 2013, the plaintiff gave evidence that the outstanding agistment fees were calculated at $265,045.00, including arrears outstanding at 31 March 2010 of $150,000.00. By his response dated 7 January 2014, the defendant had acknowledged that he would pay past agistment fees outstanding which he calculated at $170,003.00, together with interest of $13,252.00. 4. The parties came to an agreement whereby the defendant agreed to remove his cattle by 31 March 2014. The plaintiff's evidence was that the last of the cattle were removed in the middle of May 2014. 5. The plaintiff also gave evidence about documents that were prepared using the National Livestock Identification database, which provided some evidence of stock being moved off and onto the property. 6. In cross-examination, the plaintiff conceded that during the period 2004 to 2010, he believed that the defendant was doing it tough financially. He did not agree that drought conditions existed during that period. 7. The plaintiff agreed that the defendant provided assistance to him in about 1999 when the plaintiff's partnership was in receivership. The defendant also assisted in relation to the eradication of serrated tussock. He was asked: "Q: I suggest from 2004 to 2010, for whatever reason or reasons, you were content to let him off paying agistment? A: Absolutely not. I was prepared not to pursue him through legal action to recover the agistment. 1. The plaintiff conceded that there was no document evidencing any claim, request or demands for agistment fees during the period 2004 to 2010. He also conceded that the arrangements for payments for agistment prior to 2010, were conducted on an informal and undocumented basis. 2. The plaintiff did not concede that the defendant was running a "cow and calf operation" on the property. He described the defendant as a "stud breeder", who would keep stud cattle to sell as stud cattle, rather than sell them off at 6 months. He disagreed with the proposition that after 6 months, calves bred on the property were moved elsewhere. 3. The defendant agreed that there were times when there was as many as 70-80 cows on the property, but had never seen a time when there were as few as one dozen cows on the property. 4. The plaintiff was cross-examined on certain documents produced by the Department of Primary Industries, in respect of claims for rebate on road transport of stock. It was conceded that this did not provide a full accounting for cattle on and off the property. 5. There was no re-examination. 6. The plaintiff also read an affidavit of Alistair John Rayner, sworn on 27 November 2016, setting out a report dated 28 November 2016. Mr Rayner was a principal of RaynerAg, an agricultural consultancy specialising in providing independent technical advice and training services to producers and agri businesses. The report set out pertinent information explaining the National Livestock Identification Scheme and requirements under the Local Land Services Act 2013 for the recording of stock movements within New South Wales. Mr Rayner concluded that whilst the database used to reconcile livestock movements could give a basic overview of numbers of stock on a property at any particular time, there would be some margin for error resulting from deaths that occurred on the property and stock that had been born on a property and remained there for the duration of their lives. There was no cross-examination. Defendant's evidence 1. The defendant read three affidavits, the first sworn on 30 June 2014 (commencing at [15]), an affidavit sworn on 17 December 2014 (commencing at [15]), and an affidavit sworn on 17 December 2014 (commencing at [20]). A further affidavit of Peter Druitt sworn on 2 December 2016 was read, except for [7] thereof. 2. The defendant gave evidence that over the years the number of cattle on the plaintiff's property varied. However, to his best recollection, the average number of cows over that period of time was "around 60". The highest number was 100, and the lowest, "down to 10 or 11". 3. In cross-examination the defendant gave evidence that he started breeding cattle in about 1984 and was highly capable at it. When asked where his records were of cattle sold over the years, he answered: "I no longer retain most of that." 1. In 2014, the defendant gave evidence that there were 56 cows and 36 calves on the property. He was incapable of giving more precise numbers in respect of earlier years. 2. The defendant agreed that he had been paying the same agistment rate in 2003 as he had been paying in 1986. He agreed that he ceased making payments in 2004 because he was financial difficulties with the drought. He denied that he asked that payments be suspended for a time from 2004 to 2010, and he gave evidence: "A: That agistment be waivered, that agistment not be charged while I was handfeeding because of the drought. That was to take effect until 'we got better seasons, until we get regular seasons, and I didn't have to handfeed.'" 1. He denied that he was simply asking for extra time to pay, and he also denied that he asked the plaintiff to be patient until better times came along. 2. In respect of email correspondence in 2010, the defendant agreed that the plaintiff had written to him saying that he was not prepared to continue the existing agistment arrangement. He agreed that the plaintiff was proposing a new regime, and acknowledged that he was told the existing regime had to end. He was then asked: "Q: So it was clear to you that if you continued to agist cattle it would have to be under the new regime, yes? A: No. Q: Well you've just said it was clear that he was responding to the existing arrangement? A: It was clear that he said he wanted to end the existing arrangements. Q: Yes. So if he ends that arrangement, by what right would you continue to agist cattle on his property? A: I responded to Mr Nock and said I wanted to continue to use his property. Q: Yes. You didn't tell him that you weren't going to pay the new rates, did you? A: I thought that would come up in further discussions with him. Q: Did it? A: No. Q: So you kept the fact that you weren't going to pay these new rates to yourself? A: I didn't appreciate that Mr Nock interpreted it that way. I expected that if he wanted or was going to insist on high rates, he would have addressed the situation. Q: Now it would have been clear from his communication that the old rates weren't available? A: It wasn't clear to me." 1. The defendant was then cross-examined on the various emails passing between him and the plaintiff. He said that he did not believe there were any existing outstanding payments, but acknowledged that he had said that if there were any, they would have to be paid. 2. The defendant described the new rates for agistment outlined by the plaintiff in January 2010 as being "uneconomic" for him. He had investigated what agistment would cost you in other places, but had not given evidence about that. He also acknowledged that he had made payments to the plaintiff but did not provide the plaintiff with any calculations as to how those payments were calculated. He said: "I was anxious to give Mr Nock some money." 1. He acknowledged that he owed the plaintiff and was asked: "Q: How much money did you owe? A: I believe I owed him at the old rate." 1. As to the new rates proposed by the plaintiff, the defendant said he did not say that he was willing to accept the arrangement. 2. The defendant agreed that it was the plaintiff's expectation that he would eventually honour the debt that he had incurred to the plaintiff. In 2012, he had not paid 2 years' worth of agistment payments. When asked why he had not worked out how much money was owed, he said: "A: I was very short of money. I couldn't pay him at that time what I owed him." 1. The defendant said that he paid the plaintiff what he could afford to pay him, but knew that he owed something more than that. He denied that he never intended to pay the plaintiff and said that he knew in round figures what numbers of cattle he had on the property. 2. After 2010, the defendant was aware that the plaintiff wanted to be paid, and was very unhappy about not having been paid. He was also aware that the plaintiff had not waived payment for at least the more recent years. He denied that it was his position that he should be able to simply continue to use the plaintiff's property. 3. The defendant acknowledged that he at no time told the plaintiff that he would not pay the new rates for agistment required by the plaintiff in January 2010. When he received the letter of demand dated 20 January 2013, he agreed that he advised the plaintiff that he would need to pay him. That meant resuming monthly payments. He did not disagree with the plaintiff's assertion that there was $180,000.00 outstanding. 4. The defendant said his records in respect of cattle numbers from 2013 and earlier, had been lost. He was aware that the plaintiff advised him by email dated 28 August 2013 that he was turning down offers from other people to agist cattle on the property. 5. The defendant conceded that he wrote the email dated 24 September 2013 in the hope that the plaintiff would not commence legal proceedings against him. By December 2013, the defendant had taken no steps to address the outstanding debt. At that time, he appreciated that the arrangement was going to terminate and he was going to need to move his cattle off the property and pay the plaintiff money. 6. The defendant acknowledged that he knew the plaintiff was claiming a total figure of $265,000.00 was outstanding, and that he had been discussing securing the debt by way of a second mortgage over his property. He agreed that he told the plaintiff he would look into the implications of setting up a second mortgage. He had discussed that with his accountant and first mortgagee. 7. The defendant acknowledged that he had amended the spread sheet sent by the plaintiff to him, outlining the calculation of debt of $265,000.00. He acknowledged that on 7 January 2014. When asked whether he admitted that he did owe $265,000.00, he answered: "A: I sent it as a starting point – things we might agree on to try and work a resolution. I'd ask him to consider several aspects there." 1. He sent the document for the plaintiff as a discussion point for a settlement arrangement. 2. When asked why he did not respond to emails from the plaintiff, the defendant said: "I was looking for alternatives and ways in which I could arrange a satisfactory payment." 1. The defendant gave the following evidence about the schedule of fees outstanding: "Q: The reality of the situation, Mr Maddern, is that if you felt that Mr Nock was charging you for years where you did not have to pay agistment, you would have said something about it? A: Yes. Q: And you did not? A: I put a document down to discuss it. We didn't reach an agreeable conclusion. Q: But at no time did you tell Mr Nock, "hey, I don't owe money for those years". That's the case, isn't it? A: I can find no written evidence that I did. Q: The reason for that, isn't it, is because you knew full well that you did owe money for those years? A: I disagree." 1. The defendant was cross-examined on the NLIS records, recording stock movements to and from the property. 2. The defendant gave evidence that he retained no records on what funds he spent undertaking work on serrated tussock on the plaintiff's property. Nor did he have records showing how much money he had spent on fencing work. He denied exaggerating the work involved in both. 3. The defendant gave evidence that the agreement was terminated in December 2013, but only partly because of unpaid agistment fees. 4. In re-examination, the defendant was asked about receiving a Notice to Produce by solicitors for the plaintiff in November 2015. He identified a bundle of documents provided in response to the Notice to Produce, and the plaintiff, through his counsel, conceded that there was some material produced which would fit within the terms of the Notice to Produce. 5. There was no case in reply. Admitted Facts 1. The plaintiff relied on the following facts set out in a Notice to Admit Facts filed on 14 October 2014, to which there was no response from the defendant. The following are therefore admitted pursuant to Pt 17 r 3(2) UCPR: 1. "There was a verbal agistment agreement in place from no later than 1986 between the Defendant and a partnership which traded as Bluhm and Nock. 2. Under the agistment agreement the Defendant agreed to pay agistment monthly based on the number of cattle he had on agistment on the property. The rate was $2.50 per week per bull or other animal more than 12 months old and $1.50 per week for weaner animals up to 12 months old. Younger animals were not subject to the agistment fee. 3. There is no residual debt known to the Plaintiff for agistment expenses in respect of agistment expenses incurred by the Defendant during his dealings with the Bluhm and Nock partnership. 4. The Plaintiff (Lawrence John Nock) became the owner of the Gunning property at some time after the beginning of 1999. Thereafter all agistment accruing was payable to the Plaintiff. 5. The Defendant continued to agist cattle on the Gunning property after the Plaintiff became the sole owner of that property in about 1999. 6. After 1999 the Plaintiff did not to the knowledge of the Defendant, approve the agistment of animals other than those owned by or specifically agreed to by the Defendant. 7. The agistment arrangements after the change of ownership remained unchanged from those which had existed since about 1986 and continued unchanged up until 1 April 2010. 8. The Defendant sold property prior to 2003/2004 and some of the proceeds of the sales were held in trust for the Defendant in an account owned by the Plaintiff. 9. No funds other than funds owned by the Defendant were held in the account. All interest earned on the deposit was retained by the Defendant. Any costs incurred in operating the account were at the expense of the Defendant. 10. The Plaintiff made payments out of the funds held in trust for the Defendant on the instructions of the Defendant and provided to the Defendant reports on the interest earned on the deposit, any account keeping costs imposed by the financial institution and any transfers which had occurred to and from the account. 11. All payments for agistment were made by the Defendant by cheque or bank transfer, including transfers approved by the Defendant from funds held for him in trust by the Plaintiff. 12. All payments for agistment on the Plaintiff's property, made or approved by the Defendant after 1999 and before 30 June 2004, were made to the Plaintiff. 13. Since the Plaintiff became the owner of the Gunning property, the Defendant paid or arranged for payment of amounts, to the Plaintiff for agistment as follows: 1999/2000 $19500 2000/2001 $0 2001/2002 $26921.59 2002/2003 $14992.846 2003/2004 $14285.81 1. The Defendant paid all agistment due up until 30 June 2004. 2. The Plaintiff is not aware of any amount which is owing by the Defendant in respect of agistment expenses incurred prior to 30 June 2004. 3. The plaintiff is not aware of the numbers of animals the Defendant had agisted on his property during the period to 30 June 2004. 4. Since 30 June 2004 the Plaintiff has made a number of requests to the Defendant to provide full details of the number of animals the Defendant was agisting on the Plaintiff's property. 5. The Defendant has not provided specific details of the number of animals he has had on agistment on the Plaintiff's Gunning property since 30 June 2004. 6. On 11 January 2010 the Plaintiff sent notice of proposed changes to the agistment arrangements with effect from 1 April 2010 to the Defendant. In that notice, the Defendant was invited to submit comments or alternative proposals. 7. The Defendant received that notice and responded to it on 24 January 2010. 8. The Defendant made no suggestions and sought no modifications to the arrangements set out in the message of 11 January 2010. 9. The Defendant continued to agist animals on the Plaintiff's Gunning property after 31 March 2010. 10. In 2010, the Defendant made two agistment payments totalling $2200 to the Plaintiff. No details of the basis for those payments were provided to the Plaintiff. 11. While the Defendant was agisting livestock on the Plaintiff's property over the period from 2004 to 2014, the Plaintiff visited his Gunning property on a number of occasions while the Defendant was present on the property. On several of those occasions the Defendant was working his cattle in the cattle yards on the property and the Plaintiff spoke to him at the cattle yards or elsewhere on the property." The defendant's submissions 1. In a thorough written outline of submissions, learned Senior Counsel for the defendant submitted that no express agistment agreement existed between the parties subsequent to 2004. After January 2010, it was open to the court to find that there was an implied agreement that the defendant would continue to agist cattle on the plaintiff's land in consideration of payment of fees adopted from the informal arrangement which had existed between 1999 and 2004. The plaintiff's email of 10 January 2010 was an invitation to treat, or, at its highest, conveyed an offer which the defendant did not expressly or impliedly accept. It was submitted that the conduct of the plaintiff subsequent to 10 January 2010 made it clear that he did not consider the parties to have reached an agreement in the terms now asserted by him. 2. The defendant relied on Empirnall Holdings Pty Limited v Machon Paull Partners Pty Limited (1988) 14 NSWLR 523 for the principle that silent acceptance of an offer was insufficient to create a contract, silence for a reasonable period signifying rejection rather than acceptance of an offer. 3. The defendant submitted that on 9 November 2012, the plaintiff purported to impose an obligation on the defendant to pay agistment fees from 2004 to 2010, for the first time. It was submitted that the plaintiff's claim for payments for agistment prior to 1 April 2010 must fail. There was no consideration for doing so and the plaintiff had no legal right to retrospectively claim agistment for that period when none had been sought during that period. Contrary to that contention, if it was a term of the 2010 agreement that the defendant would pay for past agistment, such provision would have been an essential term of the agreement which would have failed for uncertainty. No basis for quantification of the amount owing was suggested by the plaintiff, and save for the period subsequent to 2 April 2008, it would have been statute barred in any event. 4. For the period 1 April 2010 to 1 April 2014, at the rates previously agreed between the parties, the defendant asserts that he was liable to pay the sum of $34,640.00, of which, $2,400.00 was paid, leaving a balance of $32,240.00. 5. The defendant submitted that none of the following elements of estoppel by representation had been established on the evidence: 1. A statement or other conduct by the representor that constitutes a representation of fact; 2. Its communication to the representee; 3. The representee's justiable belief in its truth and his alteration of position in that belief; 4. An attempt by the representor to contradict his representation; 5. Prejudice to the representee as a result of his alteration of position if contradiction of the representation were permitted. 1. By his email of 24 January 2010, or at any other time, the defendant did not represent to the plaintiff that he wished to be bound by the terms proposed by the plaintiff. The plaintiff could not have had a justifiable, reasonable belief that the defendant intended to be bound by the proposal made by the plaintiff. 2. It was submitted that there was no evidence that the plaintiff could have secured agistment on his land at any time following 1 April 2010. 3. It was submitted that the representations upon which an estoppel is asserted must be clear and unambiguously state the fact which the representor is asserted to be estopped from denying, relying on Legione v Hateley (1983) 152 CLR 406 at [435-6]. The conduct of the plaintiff after 1 April 2010 was inconsistent with his asserted belief that the defendant had agreed to his proposal on 10 January 2010. It was submitted that equity would not declare an estoppel where the parties negotiating, albeit informally and infrequently, without anything being agreed. What occurred here, by way of email, were communications between the parties which were informal negotiations which did not result in a consensus. In the circumstances, the plaintiff cannot assert or establish that he reasonably believed that the defendant had agreed to his proposal of 10 January 2010. Nor was there any encouragement for the plaintiff to act on the basis of any assumptions arising from the defendant's inaction, referring to Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387. 4. The defendant submitted that the plaintiff did not change his position either substantially as required to found an estoppel, or at all, in reliance upon the defendant's representations, or conduct or otherwise. 5. The defendant further submitted that the plaintiff could not establish detriment, relying on Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19. The defendant further submitted: "As whatever loss he has sustained, over and above the agistment payments conceded by the defendant, does not result from the defendant departing from any assumption created, or representation made by him. It results from the plaintiff's decision to allow the defendant to graze his cattle on his land, notwithstanding that the basis for his doing so had not been resolved." 1. The defendant further submitted that the plaintiff could not establish here unconscionable conduct by the defendant. 2. The defendant further submitted that no estoppel could operate prior to 1 April 2010. At worse, no estoppel could arise with respect to any period prior to April 2008, by virtue of s 14 of the Limitations Act. 3. It was submitted by the defendant that the passive acquiescence of the plaintiff was an equitable defence. His inaction, delay and other facts made it inequitable for the plaintiff to enforce his rights. It was further submitted that the plaintiff was guilty of laches, in that he has unreasonably delayed seeking to assert his purported rights, relying on Orr v Ford (1988) 167 CLR 316. 4. It was asserted that if the plaintiff's claim in contract found favour with the court, so must the defendant's contention that the evidence of the plaintiff establishes that he waived his rights under the agreement between 1 April 2010 and 9 April 2012. 5. In oral submissions, learned Senior Counsel referred to the emails dated 11 January 2010, 24 January 2010 and 25 January 2010, to submit that those emails at their highest, amounted to an impermissible attempt by the plaintiff to impose or erect a contract. It was submitted that the silence of the defendant was not silence which spoke of acceptance. The test, as formulated by McHugh JA in Empirnall, supra, was whether a reasonable bystander would regard the conduct of the offeree, including his silence, as signalling to the offeror that his offer had been accepted, that finding is, with respect, not reasonably open on balance. 6. Even when he received payments totaling $2,200.00, the plaintiff did not respond in any way. This was relevant to the defence of laches. 7. It was submitted that there was no basis in law or equity upon which the court would find, on the balance of probabilities, that there was ever, between 2004 and 2010, any agreement by the defendant whatsoever to pay agistment in that period. 8. The defendant relied on the Court of Appeal's decision in DHJPM Pty Limited v Blackthorne Resources [2011] NSWCA 348, to submit that from January 2010 until July 2012 there was an invitation to treat, there was an indication of a willingness to treat, and then nothing happened, and that applying the test consistent with the objective theory of the law of contract, whether a reasonable bystander would regard the conduct of the offeree, including his silence, as signalling to the offeror that his offer had been accepted, that question could not be answered in the affirmative. 9. Contrary to that submission, if a contract was formed in January 2010, it was a contract for the future. It could not have been a contract to pay any arrears because no figure was suggested for the arrears. 10. It was submitted that any claim for past arrears would fail for uncertainty as no figure was ever suggested. Where the defendant had said in emails to the plaintiff that he would pay for past agistment, it was submitted that those emails constituted an attempt to negotiate a settlement. Those negotiations evidenced substantial disagreement between the parties. It was submitted that that disagreement extended to the sum payable, the terms for payment, security for payment and interest on outstanding sums. It was submitted that what occurred was a course of negotiation which did not result in any completed agreement. 11. In respect of the fact finding question of how many animals were on the plaintiff's property over the relevant period, learned Senior Counsel conceded that that could not be carried out with precision, and the court would be satisfied according to the civil standard that approximately 60 cows were on the plaintiff's property at all material times, on average. 12. Finally, the defendant submitted a schedule of calculations for agistment fees outstanding which was marked for identification as MFI #1. That document set out calculation of agistment fees owing on the new rates asserted by the plaintiff, amounting to $94,584.00 as at 1 April 2014. On the old rates, that would amount to an outstanding debt of $74,601.00. The defendant reserved its position in respect of pre-judgment interest. Submissions on behalf of the plaintiff 1. Counsel for the plaintiff referred to the defendant's reliance on Empirnall Holdings, supra, and submitted that the ultimate issue is whether a reasonable bystander would regard the conduct of the offeree, including silence, as signalling to the offeror that the offer has been accepted. It was submitted that this was not a matter where there was mere silence. Rather, the defendant continued to carry out his cattle business on the property of the plaintiff knowing that the plaintiff had set out new rates, and at no point protested those rates. It was that conduct of the defendant which indicated his acceptance of them. 2. Alternatively, it was submitted that the defendant was squarely within the High Court's decision in Walton Stores, supra. The defendant never denied that agistment was due for the previous years. He first asserted that after commencement of proceedings. The defendant's evidence established that the plaintiff had told him that the existing regime had to end. It was submitted that the defendant's silence was an unconscionable silence, knowing that the plaintiff was conducting his affairs on the assumption that they had a binding agreement. It was submitted that that amounted to deliberately taking advantage of the plaintiff and doing nothing to disabuse him of the notion. Further, the defendant knew that the plaintiff was suffering harm, and in particular, that he was suffering harm by not commencing legal proceedings. 3. It was submitted that the laches defence pleaded by the defendant was not made out. It was conceded that there was a gap between March 2010 and July 2012, but there was no indication from the defendant that he was not content with the arrangements. This was a longstanding business relationship and the change in 2010 represented a new business arrangement. It was submitted that it was hardly surprising in those circumstances that the plaintiff did not feel any urgency in suing. 4. It was submitted that what was important was the length of the delay and the nature of acts done during the interval. Here, the defendant had asked for more time and received it. 5. The plaintiff challenged the methodology by which the defendant calculated the agistment fees in MFI #1. The NLIS documents on which the defendant was cross-examined, did not support the contention that the cows moved off the property were calves. One of those documents had referred to "young cows" being moved off the property and it was conceded that that did not mean a calf. 6. Rather, the plaintiff made out his case in damages based on the reconstruction of stock movements contained at Ex A.46. That document constituted a reconstruction of cattle movements to and from the property which amounted to 561 cattle being agisted from 30 June 2004 to 13 May 2014. The reconstruction incorporated movements recorded on the NLIS, and a number of movements of cattle of which the plaintiff was also aware. Where the numbers lacked precision, the plaintiff relied on the rule in Jones v Dunkel (1959) 101 CLR 298, as this was information exclusively within the defendant's knowledge. Further, it was submitted that the defendant had conceded in his cross-examination that the calculation contained in the plaintiff's spreadsheet included amounts for 2004 to 2009. It was submitted that he had conceded the debt for that period and had accepted that, at the time, he owed the plaintiff $265,045.00. 7. In reply to the defendant's submissions that what in fact occurred was an ongoing negotiation between the parties, the plaintiff's counsel submitted that they were not negotiations about what the terms of the agreement were going to be. Rather, the defendant conceded a debt and was asking for a degree of generosity from the plaintiff. Therefore, the plaintiff's claim should be allowed with costs. Submissions in reply 1. In respect of the concession made by the defendant in respect of the documents produced by the plaintiff in response to a Notice to Produce, learned Senior Counsel submitted that the plaintiff had had access to those documents in the registry for a period of 18 months prior to trial, and had not asked a question of the defendant about them. It was now inviting the court to draw adverse inferences in relation to the adequacy or otherwise of the defendant's record keeping. That submission could not be made good. Findings of fact 1. Based on the evidence outlined above, I find on the balance of probability, the following facts as established: 1. From 1999, the parties operated on an agistment agreement involving the defendant to pay an agistment fee of $2.50 per week for an adult cow more than 12 months old, and $1.50 per week for animals up to 12 months old. 2. I find that the defendant paid all outstanding agistment fees up until June 2004. 3. I find that the defendant made no payments to the plaintiff for agistment between June 2004 and 1 April 2010, by agreement because of drought conditions which affected the property. 4. I find that the average number of animals owned by the defendant, agisted on the plaintiff's property, was at all material times 60 cows. 5. On 11 January 2010 the plaintiff sent an email to the defendant proposing changes to the agistment arrangements with effect from 1 April 2010. 6. The defendant received that notice and responded to it on 24 January 2010. He did not accept the proposed new rates for agistment in that email. 7. The defendant continued to agist animals on the plaintiff's property after 31 March 2010. 8. The defendant made two agistment payments totaling $2,200.00 to the plaintiff in 2010. Determination 1. In Watson v Foxman (1995) 49 NSWLR 315, McLelland CJ in Eq said at pp 318 – 319: "Where in civil proceedings, a party alleges that the conduct of another was misleading and deceptive … it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) What the alleged conduct was; and (2) Circumstances which rendered the conduct misleading. Where the conduct is a speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the Court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all), the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to have been relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word of phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is 'not … attained or established independently of the nature and consequence of the fact or facts to be proved' including the 'seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding': Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as a foundation of causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration …" 1. His Honour went on to say at p 319 that these considerations were equally applicable to causes of action based on contract. In applying these principles, in Carrier v Georges [2013] NSWSC 401 Nicholas J said at [27]: "The requisite 'reasonable satisfaction' should not be produced by 'inexact proofs, indefinite testimony, or indirect inferences' (Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J, p 362)." 1. Applying that standard of proof, and the principles set out above in Empirnall Holdings, supra, I find that no contract has been established between the plaintiff and the defendant, following the plaintiff's email to the defendant on 11 January 2010. That email should be properly construed as an invitation to treat by the plaintiff, establishing new agistment rates, which the defendant at no time accepted. A reasonable bystander would not regard the conduct of the defendant, including his silence, as signalling to the plaintiff that his offer had been accepted. The defendant replied by email dated 24 January 2010, but only to state that he would make a time to meet with the plaintiff to discuss that. No meeting took place, and while it is true that the defendant, by his conduct, continued to agist his cattle on the property, acknowledging that he owed agistment fees to the plaintiff, in the absence of a concluded agreement I find that must be construed as being pursuant to the previous arrangement between the parties, which had been waived by the plaintiff during the drought years 2004 to 2009. 2. From 1 April 2014 the defendant has acknowledged that he was bound by that arrangement to pay agistment fees to the plaintiff. Those rates were $2.50 per week per cow, and $1.50 per weaner. In 2002/2003, and 2003/2004, those payments amounted to $14,992.00 and $14,285.00 respectively. 3. I find that the plaintiff's claim in contract would have been not maintainable prior to April 2008, pursuant to s 14 of the Limitation Act. Similarly, any equitable relief available to the plaintiff would have been statute barred prior to that time – see Gerace v Auzhair Supplies Pty Limited (2014) 87 NSWLR 435; [2014] NSWCA 181 at [70] to [76]. 4. Nor are the plaintiff's claims in promissory estoppel based on the defendant's emails of 24 January 2010 and 20 February 2013 made out. It is well settled that a representation must be clear to found an estoppel – see Orr v Ford, supra, per Deane J (as he then was) at p 399. 5. The first of those representations, as pleaded in [8] of the ASOC, was that: "The defendant by his email dated 24 January 2010 and by his subsequent conduct in continuing to agist cattle at Fort Gunning made representations that he agreed to the new terms." The factual basis for that pleading has not been made out, as the defendant did not agree to the new terms in his email dated 24 January 2010. The second allegation of promissory estoppel was pleaded in [13] of the ASOC, namely that: "On 20 February 2013 the defendant by email made representations to the plaintiff acknowledging the debt and indicating that he would resume payments." 1. Other than some acknowledgement of outstanding debt, in neither email did the defendant make any clear representation of fact to the plaintiff, upon which equitable relief could be based. Nor did the plaintiff rely on any such representation to his detriment. Further, no prejudice arose by way of the plaintiff altering his position as a result of any representation by the defendant. What occurred was prevarication by the plaintiff in enforcing a debt acknowledged by the defendant. Consideration of equitable defences, such as laches or acquiescence, therefore does not arise. Nor could it be held that the defendant's conduct in the circumstances was unconscionable. 2. The defendant by his Defence has acknowledged the liability to pay agistment fees in the sum of $32,240.00. That, however, underestimates what was in fact outstanding. In his email dated 7 January 2014 the defendant acknowledged the debt then outstanding was $170,003.00. In his evidence he did not disagree with the plaintiff's assertion that there was $180,000.00 outstanding. 3. The calculation based on actual cattle numbers is incapable of precise calculation. Further, the document relied upon by the plaintiff (Ex A.46), which is a reconstruction of cattle numbers on the property by reference to the NLIS database, is also somewhat flawed. That system only operated from 2004, and did not take into account cattle numbers on the property prior to that, or cattle that had lived for the duration of their lives on the property. 4. I therefore calculate the debt outstanding, based on an average of 60 cows per annum. An additional allowance must be made for calves before they were removed from the property. I do not accept the calculation contained in MFI #1 that the total debt, without interest outstanding for the four year period from 1 April 2010 to April 2014 was $74,601.00. Rather, having acknowledged the past debt as due and owing, the plaintiff is entitled to recover agistment fees for a period of six years from April 2008 to April 2014 at an average yearly amount of $14,500.00 (based on the figures for 2002/03 and 2003/04). The total amount was therefore $87,000.00, and an allowance must be made for the sum of $2,200.00 paid by the defendant in 2010, leaving a total owing of $84,800.00. 5. I will accept written submissions from the parties within 7 days of today, on the question of pre-judgment interest on the outstanding debt, and determine that issue on the papers. Pre-judgment interest 1. Following delivery of my reasons in this matter on 28 July 2017, directions were made for the filing of submissions by each of the parties regarding the question of pre-judgment interest on the judgment sum of $84,800.00. Those submissions were eventually received and considered. I accept the plaintiff's submissions as to the calculation of an appropriate sum for pre-judgment interest, however, I have discounted the final amount to avoid the risk of double counting. This is an appropriate case for the Court to exercise its discretion to award pre-judgment interest pursuant to s 100 of the Civil Procedure Act 2005, and I intend to award the sum of $25,000.00 which will be added to the judgment sum. Conclusion and orders 1. I make the following orders based on the findings I have made: 1. There will be a verdict and judgment in favour of the plaintiff against the defendant in the sum of $109,800.00. 2. The defendant will pay the plaintiff's costs of the proceedings. 3. Any application for a special costs order is to be made by way of Notice of Motion with affidavit evidence in support on 5 days' notice. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2017