Deasy v Stewart & Ors [1995] QSC 196

TRANSCRIPT ()F PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) REVISED COPIES ISSUED State Reporting Bureau Date 1°1 ( SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ( ( (' de JERSEY J No 589 of 1992 No 1659 of 1992 , BRIAN DANIEL DEASY and NEVILLE STEWART and KAY SKEEHAN BID PTY LTD (ASC 009 982 058) and NEVILLE STEWART BRISBANE .. DATE 04/07 /95 JUDGMENT 1 Plaintiff First Defendant Second Defendant Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 8 -- 040795 ajb (de Jersey) HIS HONOUR: The plaintiffs seek a declaration that the second plaintiff BID Pty Ltd or alternatively the first plaintiff, Brian Daniel Deasy, was the owner as to one half of five horses, Abiding Miss, Windy Top, Truden, and two foals born of Windy Top and Truden. The plaintiffs also seek damages flowing from the defendants alleged sale of those horses in 10 breach of contract or negligently. Mr Deasy, the first plaintiff, conducted the case on behalf of the plaintiffs. Last Friday Mr Justice Williams refused an application made by him for trial by affidavit, but did direct Mr Deasy to serve a statement of his evidence on the basis that it might be admitted as an exhibit at trial. As it turned out, the written statement which he did produce was inadmissible in large parts and Mr Deasy eventually abandoned that, albeit at my suggestion (see pages 16 and 17) and presented his case orally. I had earlier marked that statement Exhibit 3. Having heard the first plaintiff's oral evidence I was satisfied that he was well able to give oral evidence in the ordinary way. It is convenient to begin with Windy Top and Truden. I accept Mr Deasy's evidence that each of those horses was owned as to one half by Dennis Schofield and as to the other half by himself, Mr Deasy. Elders, the stock and station agents, sold the horses on 12 April 1991. The plaintiff's allegation is that the defendants brought about that sale and did so negligently or in breach of duty or contract because they did not first secure the plaintiff's consent to it. 2 30 () 40 /~' \_) 50 60 -- 2 of 8 -- 040795 ajb (de Jersey) Mr Deasy's evidence was that when he learnt of a possible sale of the mares by the first defendant on whose stud they were situated, he indicated to the first defendant, Mr Stewart, through his solicitor, Mr Crawford, that Mr Schofield's authority would have to be obtained because he, Mr Schofield, was a part owner (see the transcript at pages 37 and 45). The 10 implication was clear that Mr Deasy himself raised no objection to a sale and neither did the second plaintiff, which Mr Deasy suggested at one stage was the relevant part owner with Mr Schofield and on whose behalf he, Mr Deasy, ( acted. ( That implication is also consistent with Exhibit C to the affidavit of the first defendant which I admitted as Exhibit 5 at the trial and which Mr Deasy himself tendered in evidence. Mr Deasy conceded that he authorised Mr Crawford to send that letter. The defendants in fact called Mr Crawford, the solicitor, to give evidence at the trial. I accepted his / ( evidence that at the time of the correspondence of which ( Exhibit C to the affidavit Exhibit 5 at trial formed part, he, Mr Crawford, was acting as solicitor for Mr Deasy and that Mr Deasy gave oral authority for the sale prior to Mr Crawford sending the letter, Exhibit 12. Mr Crawford also confirmed that he regarded Mr Deasy, who spoke also for the second plaintiff, BID Pty Ltd, as having consented in either relevant capacity - that is, either personally or for that company. I accepted all of the evidence of Mr Crawford. In fact, Mr Schofield did consent to the sale in accordance with one of the conditions of the 3 20 30 40 50 60 -- 3 of 8 -- 040795 ajb (de Jersey) plaintiff's authority for it to proceed (see Exhibit D to the affidavit, Exhibit 5 at the trial). It was therefore a case where Mr Deasy and, if relevant, the second plaintiff, should be regarded as having consented to the sale which was made of Windy Top and Truden. I turn to the foals born of Windy Top and Truden. The first defendant sold these foals at auction on 12 April 1991. Mr Deasy pleads that the second plaintiff, BID Pty Ltd, was a one half owner of those foals which may be consistent with the ownership of Windy Top and Truden, although he, Mr Deasy, personally claimed a one half share of them. I mention this only because Mr Deasy claimed in his oral evidence to own the foals personally and in their entirety. The pleaded case, however, is that the second plaintiff was a half owner of those foals. My conclusion on the facts is that it was Mr Deasy personally who was the half owner of those foals, the other half being owned by Mr Schofield. The pleaded case is that the first defendant sold those foals without the plaintiff's consent. On the first plaintiff's evidence (see the transcript at pages 51 and 53) and on the evidence of Mr Chester, I find that authority to sell a mare carries with it authority to sell a foal prior to weaning, and I accept on the first plaintiff's evidence that these foals fell into that category. As I have already found, the plaintiffs consented to the sale of the mares. The only other part owner of the mares, Mr 4 10 [) 30 C) 40 0 50 60 -- 4 of 8 -- ( 040795 ajb (de Jersey) Schofield, also consented and that consent expressly extended to the foals as may be seen from Exhibit D to Exhibit 5 on trial. At one stage Mr Deasy denied that Mr Schofield had an interest in the foals, but I find otherwise. In any event, the end point is that the basis of the plaintiff's claim in relation to the foals - that is, lack of authority - was again not established. That leaves Abiding Miss. She was sold at auction on 22 April 1990. She had been owned as to one half by Mr Schofield and as to the other half by Mr Deasy. Mr Schofield, as I find, ( purchased the entirety of the horse on that occasion. ( I ( ' The basis of the claim is that the defendants brought about that sale without the plaintiff's consent. Prior to the sale on 22 April 1990 Mr Deasy had on one occasion instructed Mr Schofield to put the horse up for sale, but it was rejected. Mr Schofield was manager of the horse and, as Mr Deasy conceded, was therefore to be seen as the source of instructions about the horse on behalf of the owners. Mr Deasy said under cross-examination that he had intended attending the sale on 22 April, as I infer, knowing that Abiding Miss was then to be put up for sale, and did not attend only because of an unfortunate incident involving his wife which prevented him from doing so. It does, therefore, seem to me, first, insofar as Mr Schofield instigated the sale, that he should be regarded as having had 5 10 20 30 40 50 60 -- 5 of 8 -- 040795 ajb (de Jersey) the authority to do so as manager of the horse and, second, that Mr Deasy should, in any event, be regarded as having at least acquiesced in it. Again, therefore, the alleged lack of authority has not been made out. It emerged during cross-examination of Mr Deasy that his real 10 complaint may have been that the horse was entered for sale in the name of Mr Schofield alone, leading to the result that when he, Schofield, purchased the horse, he paid not the purchase price of $3,000, but commission only of $160. 20 Acknowledging Mr Schofield's position as manager carrying with it, as Mr Deasy agreed in evidence, authority to deal with the () horse on behalf of the owners, including sale, it appears to me that any claim of the plaintiffs may be against Mr Schofield, not the defendants. I should add, however, that there was a suggestion through cross-examination, although not accepted by Mr Deasy, that there was a separate arrangement between Mr Deasy and Mr Schofield which may explain these things. Mr Auld, whose evidence I accepted, gave evidence of what Mr Deasy said about that arrangement, which involved the exchanging of two brood mares, which one might infer were Windy Top and Truden, for the filly Abiding Miss and her mother, Rom Raid. That may explain, therefore, why Mr Schofield nominated Abiding Miss in his own name solely. Mr Deasy told Mr Auld that in May 1990, although it is not clear from the evidence whether or not that arrangement predated the sale. So, one cannot be certain about these 6 30 () 40 0 50 60 -- 6 of 8 -- 040795 ajb (de Jersey) things, but if it did then it may provide some explanation for the nomination in Mr Schofield's name alone. In any event, the claim is made against the defendants and one should point out that there is no evidence about how the nomination came to be made in the name of Mr Schofield alone. 10 ( There was no evidence given here by Mr Schofield or by Mr Stewart. I would infer as the more likely explanation that the instructions for the terms of the nomination came from Mr Schofield as manager - that is, in the ordinary way. I would not be prepared to infer that Schofield gave different (- instructions which were either wrongly translated or misapplied by the defendants. ! \ I did not accept all of Mr Deasy's evidence. He was an unsatisfactory witness in some respects, given to defensiveness and a degree of evasiveness. I was, however, prepared to accept his evidence insofar as he made what I interpreted to be concessions against his interest. I accepted the evidence of the Elders' representative, Mr Robbins, although it did not advance the matter. I also accepted the evidence of the auctioneer on 12 April 1991, Mr Chester, but his evidence was similarly not fruitful for the plaintiff's case. In fact, Mr Chester disputed the plaintiff's claim of economic loss. It has not been necessary for me to go into the quantum of loss, but I would not accept the very generally cast estimates 7 20 30 40 50 60 -- 7 of 8 -- 040795 ajb (de Jersey) put before me by the first plaintiff, especially in light of Mr Chester's evidence. Mr Chester properly described those estimates as highly speculative. It follows that the plaintiff's case fails. There is no need for me to make declarations on the counterclaim. I give judgment on the claim for the defendants against the plaintiffs with costs, including reserved costs, to be taxed. I dismiss the counterclaim with no order as to costs. I order that the sum of money of $4,000 paid into Court as security for costs together with any accretions be paid to the solicitors for the defendants and received by them in part satisfaction of the costs ordered to be paid by the plaintiffs. 8 10 30 C) 50 60 -- 8 of 8 --