Barrett v Merrin & Merrin [2016] QDC 12

DISTRICT COURT OF QUEENSLAND CITATION: Barrett v Merrin & Merrin [2016] QDC 12 PARTIES: RODNEY KEITH BARRETT (plaintiff) v NOEL JAMES MERRIN (first defendant) and TONI MERRIN (second defendant) FILE NO/S: No. 6 of 2013 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Rockhampton DELIVERED ON: 22 January 2016 DELIVERED AT: Rockhampton HEARING DATE: 12,13 August 2015, and 9 December 2015 JUDGE: Burnett DCJ ORDER: CATCHWORDS: CONTRACTS – general contractual principles – construction and interpretation of contracts – contract for agistment of cattle – terms of agreement – breach of contract – experts report – assessment following findings on relevant variables COUNSEL: J. Ahlstrand for the Plaintiff The Defendants appeared on their own behalf SOLICITORS: John Crossan & Company The Defendants appeared on their own behalf Introduction [1] The plaintiff owns a property in central Queensland upon which he says he employed the defendants as managers. Certain terms were alleged to govern that arrangement, in particular a term concerning their entitlement to agist cattle upon the plaintiff’s -- 1 of 8 -- 2 property. The plaintiff says the defendants breached that agreement and now claims damages for that breach. The damages are in the nature of agistment charges for excess stock agisted by the defendants on the property. Background Facts [2] Prior to concluding any agreement, the defendants were engaged as managers of a station, Delta Downs, on Cape York. They were there on a two year contract which they did not expect to be extended as the property was owned by an indigenous corporation and their arrangement contemplated them training indigenous personnel to assume their management role. In the course of events, they became aware the plaintiff was looking for a manager for his property in central Queensland. [3] The plaintiff had owned his property, Mount Leura Station (including Clifford Downs), for many years. He did not live on the property, and does not. At the time, he lived in PNG and used Cairns as his base. He then had the property under the management of Mr John Baker, who had expressed a desire to leave. Accordingly, the plaintiff made contact with the defendants and in turn visited them at Delta Downs. While the parties do not agree on all the detail, each agrees that a conversation took place on the evening of the plaintiff’s visit to Delta Downs. The plaintiff says that he broadly offered to the defendants that in exchange for them undertaking management duties on Mount Leura Station, he would pay them $1,000 per week (payable monthly), permit them free use of the house including power and water, and permit them use of a motor vehicle together with fuel and fuel for their own vehicle. He says no mention was made at that time of agistment of the defendants’ cattle. That detail, he says occurred after the defendants had accepted his offer concerning management and on an occasion in May when he visited his property, Mount Leura Station when he again met with the defendants. He says that on that occasion the first defendant and he had a conversation in the stockyard at Mount Leura where he says the first defendant informed him that he, the first defendant, had “roughly 50 cattle at Aramac and I’m paying agistment on them, would you mind if I brought them here”.1 The plaintiff says he agreed to permitting the defendant to run 50 head of cattle, noting that the first defendant could not build upon that number and that the plaintiff expected progeny to be sold. 1 T1-21 line 33. -- 2 of 8 -- 3 [4] The defendants have a different recollection. The second defendant says that when the plaintiff visited them at Delta Downs she remembers the matter being discussed. She recalls that at the end of the conversation the plaintiff touched her husband’s shoulder, shaking his hand and saying, “Mate, so we’ll talk about it more, but you’re good with, you know what I’m offering you. I can only offer you $1,000 a week. … I’ve got a beautiful home down there and I want you to come down and treat it as your own home and make it your house. … Electricity will be part of it. I’ll pay for electricity and you don’t pay for the running costs of the fuel for the farm. I’ll be paying for that. Just your own fuel, and mate, you should be right to bring your cows down up to 100 head …”.2 [5] The first defendant’s recollection was more limited. He recalled the meeting at Delta Downs and the invitation to come down and look at Mount Leura Station first. He stated that in late November 2007 he, the second defendant and their son attended the property and drove around it. He said he drove around in the plaintiff’s car, at which time the terms discussed at Delta Downs were restated. He said the plaintiff also said, “I could bring my cattle on there up to 100 head.” [6] While he agreed the conversation commenced at Delta Downs, he better recalls a conversation to the same effect as the second defendant related it but says it was on the occasion when he and the second defendant visited the property with the plaintiff in late 2007. It is agreed by all that the first defendant attended the property unannounced shortly after the meeting at Delta Downs, but this is not the occasion that the second defendant speaks of. [7] Speaking of that visit, the plaintiff says the defendants turned up unannounced in April, expressing interest. Respectfully, I prefer the defendants’ evidence on this point. They had to travel a significant distance to view the plaintiff’s property. They also had to consider termination of an existing management arrangement and contemplate packing up their house and children for any such relocation. None of these matters are simply undertaken. It does not accord with common sense that they would have simply arrived at Mount Leura Station unannounced and serendipitously that the plaintiff would have been present at the time. They were clearly visiting Mount Leura Station to investigate the plaintiff’s offer. On the occasion of the first 2 T2-31 lines 3-13. -- 3 of 8 -- 4 defendant’s unannounced and spontaneous visit to Mount Leura Station when the plaintiff was not there, he took photographs for his wife in order to report to her. Given the plaintiff’s offer included accommodation, I have little trouble accepting this event occurred as was related by the first defendant. It follows on balance I am satisfied that upon that basis a subsequent arrangement was made for both defendants to attend Mount Leura Station and that occurred in late 2007 as the second defendant stated. Accordingly, I have little difficulty accepting the plaintiff’s offer was restated as the first defendant says. In my view, nothing turns on this vague recount of events at Delta Downs by him. To him, the critical conversation occurred at Mount Leura Station. It is there that he says, following a tour of the station in the plaintiff’s car, that the plaintiff restated his offer which materially included an offer to him to bring up to 100 head of cattle onto the property. [8] Likewise, I prefer the chronology provided by the defendants. It not only accords with common sense but it is supported by objective facts that were not contested such as the defendants subsequently leaving some of their personal belongings at the property on the next visit after that visit. The second defendant says that occurred in January 2008. The first defendant did not provide a date but stated the leaving of property occurred after the meeting with the plaintiff at Delta Downs. [9] Concerning the terms of the agreement, the parties differ on two significant matters. First, the plaintiff says the original agreement did not provide for the defendants to bring any of their own stock to Mount Leura Station. Secondly, the plaintiff says when a subsequent agreement on this point was reached the number of stock the defendants were permitted to bring was limited to 50. In this dispute nothing turns on the first point. However, it assists on credit and reliability. The second point is central to the proceeding. [10] On balance, I am satisfied that the original terms of the agreement included an agreement that the defendants be permitted to agist cattle upon the property. It was not the subject of a later, collateral agreement. The defendants owned cattle which they had agisted on properties in central Queensland at Aramac. At the time negotiations commenced, they were in far north Queensland. The nature of the herd, largely breeders, suggested that they were trying to develop a sufficient quantity of stock to establish a commercially feasible herd with a view to acquiring their own property. Given the expense in agisting of that herd and the foreseeability of their -- 4 of 8 -- 5 management contract at Delta Downs coming to a conclusion, the prospect of a situation in central Queensland which permitted them to agist their stock as part of any employment arrangement would have been attractive. Additionally, the other terms of the arrangement were not attractive. The plaintiff openly conceded the wages were not high. $1,000 per week is barely above the basic wage. No doubt the offer of a house and vehicle would have provided some additional incentive, but despite this the offer was acknowledged by the plaintiff as being uncompetitive in a region where many are attracted to work in the mines at wages and on terms and conditions well in excess of those then being offered by him. Although no detail was provided about the terms and conditions upon which the defendants were employed at Delta Downs Station, it is open to inference that they were more attractive. The remuneration package on Delta Downs included the payment of boarding school fees for at least one child. It can also be inferred it included the provision of both a house and vehicle in addition to salary. I think it can be reasonably inferred that overall the remuneration package for that employment was attractive. Comparatively, the package being offered by the plaintiff was not. However, in addition to enabling the defendants to live in central Queensland and thus source employment in the mining sector to supplement the wages being paid to him, it also had the attraction of agistment. I am satisfied that against the background of this case agistment was a matter that was important to the defendants and was raised by them in discussion prior to agreement. [11] In any event, I think this conclusion can be justified by reference to the plaintiff’s evidence. He says the matter was raised by the defendant in the cattle yard at Mount Leura Station. This could have occurred on the occasion of the defendant’s visit to Mount Leura Station in late 2007. The plaintiff has no recall of the meeting following the defendants’ unannounced visit to Mount Leura Station but recalls a meeting one month after he recalls the defendants starting. I think the plaintiff is mistaken in that matter. His evidence was quite vague. As I have stated, it does not accord with common sense. However, it is quite conceivable such a discussion may have occurred in the stockyard in the manner in which it did on either the plaintiff’s case or the defendants’ case. Nothing turns on the place where that conversation occurred, save for the time of its occurrence. -- 5 of 8 -- 6 [12] The plaintiff says that when agistment was raised, the defendant said to him, “Look, I’ve got roughly 50 cattle at Aramac and I’m paying agistment on them, would you mind if I brought them here …”. He stated upon that basis he agreed to 50 cattle being run, including him making a statement that, “… you can’t just keep building and building 50 head of cattle. The progeny were to be sold at six months of age.” This additional matter, that is the issue of progeny, was addressed in response to a question by me. My general impression of the plaintiff’s evidence on this matter is that it was all very vague. The defendants say the figure agreed was 100. I think the evidence of each of the defendants is more reliable, as it more closely accords with the stock holdings at the time as evidenced by the waybills raised at the time the cattle was transported from various locations to the Mount Leura property. However, that matter alone does not necessarily mean that the first defendant was truthful in his statement to the plaintiff that he intended to bring on 100 head of cattle. However, after the cattle were brought onto the property, the plaintiff visited the property and says he counted more than 50 head. Despite his observation of this he never challenged the defendants on that matter. [13] The plaintiff did not impress me as someone who would stand by and allow an arrangement to be so wilfully traduced. I expect if he thought that the defendants were not acting in accordance with the agreement, he would have raised that matter. For instance, later when he came to a view that the defendants were stealing his stock, he did not hesitate to summarily terminate the arrangement, evict them from the property and call the police. It follows I am satisfied on balance that the original discussion between the parties contemplated the defendants bringing onto Mount Leura Station 100 head of cattle for agistment as part of the overall remuneration package. [14] Subsequently when an agreement was concluded between the parties by their acceptance of the plaintiff’s offer, it was an express term of their agreement that the defendants be permitted to agist up to 100 head of cattle on the property. Breach [15] Plainly by reference to Mr Balfour’s report, the defendants did breach the agreement by bringing onto the property 138 head of cattle. It follows the plaintiff is entitled to damages for the defendant breach assessed on that basis. -- 6 of 8 -- 7 Damages [16] Mr Richard Thomson, stock and station agent of 40 years’ experience gave evidence of the agistment rates. In summary he opined a rate of $3.50 to $4.50 per head per week was an appropriate rate for agistment on the plaintiff’s property of cattle of the defendants’ character over the relevant period. Ultimately he settled upon a rate of $4.50 per head stating that figure took account of the variation of cattle type that had been agisted, that is ‘breeders and fatteners’ and allowing for their differing requirements the rate ends up ‘pretty much the same’.3 He also noted the rate doesn’t vary between long term agistment or short term agistment.4 [17] Perhaps the most significant conclusion of Mr Thomson was that rates might vary based upon what each party offers: “by some agreements the land holder takes care of the cattle, looks after mustering, presentation and everything like that; other agreements… the livestock owner takes care of those cattle, and there’s a huge variation in the rates and what’s offered on some of those agistment agreements”.5 That evidence was provided in response to a suggestion by Mr Merrin that the agistment rate for a commercial breeder herd was $3.00. [18] Here it was always going to the case that the defendants on their own time would attend to the matters others might leave to the land holder. I note that there was in evidence an agreement the Plaintiff and another had concluded in 2007, a few years before this agreement was struck. There the plaintiff settled upon a rate of $4.50 per head to agist in circumstances where he would do all fencing, have water pumped and undertake all mustering if and when required. It follows the higher right ought not apply. I accept the minimum rate of $3.50 (plus GST) per head per week reflects the appropriate rate. Quantum [19] Initially the plaintiff proffered an expert’s report prepared by Geoffrey Balfour, accountant/management consultant which set out an estimate of the agistment due. It was subject to dispute partly because of the disagreement concerning fundamental elements such as the appropriate agistment rate to be applied and number of cattle 3 T2-7 line 40. 4 T2-8 line30. 5 T2-9 line 32-35. -- 7 of 8 -- 8 concerning which agistment was due. Additionally there were concerns related to alleged ‘double counting’ of cattle based upon waybills and other source material. These concerns have since been resolved. Upon mention of the matter to address those concerns the parties agreed the preparation of a further report by the expert, Mr Balfour would be deferred pending the publication of these reasons, particularly addressing the variables of agistment rate and cattle numbers. Further it was agreed that upon the provision of that report the matter would then proceed to assessment. Directions [20] In the circumstances I will direct that the expert’s report now be prepared. Twenty one days should be sufficient for that activity. Once prepared the plaintiff shall cause it to be delivered to the defendants. The matter will be listed at 9:30am on 4 March 2016 for with liberty to apply. -- 8 of 8 --