Anderson v Trust Company of Australia Ltd [1994] QSC 44

.JJtw State Reporting Buredii $..____ -=5-r-,......-=~ TRANSCRIPT OF 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.) SUPREME COURT CIVIL JURISDICTION ~HOMAS J No 1709 of 1993 KELLY JASON ANDERSON and TRUST COMPANY OF AUSTRALIA LIMITED BRISBANE .. DATE 03/02/94 ORDER Date /{';d...- I 9'1 Applicant/Plaintiff Respondent/Defendant 4th Floor, The La»-· Courts, George Street, Brisbane, Q. 400i) Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 5 -- 030294 T 4/LAM M/T 4292/94 (Thomas J) HIS HONOUR: This is a motion for an injunction brought by the defendant, Trust Company of Australia Limited, which is the owner of a property at Moura. The matter has previously been before the Court when the plaintiff sought an interlocutory injunction in effect preventing the Trustee from interfering with his possession of the land which is a farm property. The plaintiff was substantially successful and upon the plaintiff giving the usual undertaking as to damages, the defendant understood until trial that it would remove stock, machinery and chattels from the property and thereafter not enter upon the land or interfere with the plaintiffs quiet enjoyment of it. 10 20 c The present application is brought because the defendant fears 30 that the use now being made of the property by the plaintiff is excessive and that it will degrade the land causing irreparable harm to it. It is common ground that the plaintiff has, in recent times, made an agistment arrangement with a neighbour where under some 1600 cattle are presently pastured on the property. There is a conflict in the opinion of the experts as to whether this amounts to overstocking or not. The expert 40 opinion relied on by the applicant/defendant, Mr Spackman, is so 60 2 ORDER -- 2 of 5 -- 030Z94 T 4/LAM M/T 4292/94 (Thomas J) somewhat vague and speaks of risks more than probabilities. The essential opinion is expressed in this way. ''On my calculations (which have not changed) there was sufficient feed, having regard to normal land management practices for efficient grain and pasture management, for 835 head of cattle to graze on Dandarbong for a period of sixty days from 10 January 1994. If there were, for example, 1670 head of cattle depasturised on Dandarbong, I would estimate that there would only be sufficient feed for a period of approximately 30 days.l If an number of cattle are permitted to remain depasturised on Dandarbong for a period in excess of that recommended in my report, there is a real and substantial risk, that should storm rains occur, there will be severe erosion at Dandarbong, soil moisture conservation for future successful cropping will be jeopardised, and newly established pasture will be damaged by overgrazing." The extent of damage is difficult to assess on this opinion and it is expressed in terms of a risk rather than a certainty. The contrary opinion comes from Mr Clark and Mr Shepherd. Mr Clark takes the view that the carrying 10 20 30 40 capacity of the property is about 2,075 cattle. There is also so some uncertainty in the criteria addressed by Mr Clark, particularly as to the position before and after April 1994. I read his opinion as indicating that it would have a similar carrying.capacity .at .that.stage .because even though 830 3 ORDER -- 3 of 5 -- 030294 T 4/LAM M/T 4292/94 (Thomas J) hectares will become additionally available at that stage, the cattle may be larger. There is also a degree of assumption of a favourable summer in that opinion. Mr Shepherd has expressed a view, fairly clearly, that at least broadly speaking the property can comfortably run 1800 head without 10 undue detrimental effect to the property. It seems to me that the determining factor in this particul,ar application is whether the plaintiff is committing what I have referred to loosely during this proceeding as waste or whether 20 ~ his user of the land is unreasonable or excessive. If I was satisfied that there was a serious risk of substantial damage to the land or that there was a probability of substantial damage to the land, I would grant the injunction. Having regard to the history and circumstances I do not think that 30 the mere existence of conflicting opinion evidence is enough to justify an injunction, particularly when the extent of the alleged damage is so speculative. In the event, I am not satisfied that the risk is substantial 40 enough on the evidence. The evidence is conflicting but the weight of it and the clear part of it leads to the view that the present use may well be a reasonable one. Because there is at least reason to fear that the plaintiff is close to the stage where the well-being of the land might be threatened, in other words because 50 on any view the plaintiff seems to be close to maximum reasonable user, and because it has been a bad season and the recent rains have at least, on the evidence before me, not given a great 4 ORDER 60 c.' (; ./ -- 4 of 5 -- 030294 T 4/LAM M/T 4292/94 (Thomas J) deal of benefit to the property, I raised the question of an undertaking being given by the respondent plaintiff to advise the Trustee if any increase in the number of cattle occurred. I also raised the question of liability to pay damages arising from degradation to the property if this did ultimately occur by reason of excessive user. In the event the plaintiff, through his counsel, has offered undertakings along these lines. This I consider strengthens the desirability of dismissing the application. However the primary reason upon which I dismiss it is that I am not satisfied on the material before me that there is a probability Qr a serious risk of harm to the land through the present usage. Accordingly, the application will be dismissed upon the plaintiff, by its counsel undertaking to inform the applicant on or before 7 February of the number of cattle presently upon the property and to notify the defendant further within 24 hours of any increases in stock upon the land of the numbers of such increases and upon the plaintiff further undertaking by his counsel to pay any damages arising from degradation to the property caused by the use or occupation of the property by the plaintiff including any use that he permits on the land. The application is dismissed. HIS HONOUR: Costs reserved. 5 ORDER 10 20 30 40 50 -- 5 of 5 --