Butler v JSL Racing Pty Ltd

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMERCIAL COURT

S CI 2011 03522

BETWEEN

FRANCIS KEVIN BUTLER AND KAREN MAREE BUTLER	Plaintiffs
V
JSL RACING PTY LTD (ABN 680 1829 3505), JOHN SYMONS, SHEILA LAXON AND GLENN FIELDING	Defendants

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JUDGE:	DIGBY J
WHERE HELD:	Melbourne
DATE OF HEARING:	22-24, 26, 29-30 April, 1-3, 6-10, 13-15 and 22-23 May 2013
DATE OF JUDGMENT:	10 October 2014
CASE MAY BE CITED AS:	Butler & Anor v JSL Racing Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 509

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CONTRACT ‑ Numerous oral agreements – Existence of a joint venture enterprise –Incorporation of written terms – Identification of implied terms – Application of the Goods Act 1958 (Vic) – Identification of breaches of Individual Acquisition of Interest Agreements – Credit of witnesses – Breaches of Trade Practices Act 1974 and the Fair Trading Act 1999 – Damages.

TRADE PRACTICES – Misleading and deceptive conduct – Reliance – Damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Robins QC with Ms A Golding	Nathan Kuperholz
For the First to Third Defendants	Mr P G Nash QC with Mr G Burns	John Guthrie Pty Ltd
For the Fourth Defendant	Mr D Sheales with Mr T Purdey	Lander & Rogers

HIS HONOUR:

Background

The plaintiffs, Francis Kevin Butler (Mr Butler) and his wife Karen Maree Butler (Mrs Butler), are the owners and part owners of a number of racehorses. In this proceeding there are 29 individual racehorses with which the plaintiffs’ case is concerned.

Glenn Fielding (Mr Fielding), the fourth defendant, is also the owner and part owner of a number of racehorses. In this proceeding there are 52 racehorses which are relevant to Mr Fielding’s case, some of which also form part of the 29 racehorses in which the plaintiffs have an interest.

The first defendant, JSL Racing Pty Ltd (JSL), is a company engaged in the business of training racehorses and is part owned by the second and third defendants, John Symons (Mr Symons) and Sheila Laxon (Ms Laxon). The first, second and third defendants will be collectively referred to as either the ‘JSL defendants’ or ‘JSL parties’. Both Mr Symons and Ms Laxon manage the JSL business. Ms Laxon is the domestic partner of Mr Symons.

Mr Symons is the sole director of JSL, and Ms Laxon and Mr Symons are both shareholders in JSL. Mr Symons and Ms Laxon work in very close association in the management of JSL, although Ms Laxon is principally responsible for the JSL business records and invoicing, and Mr Symons is principally responsible for the training of the horses in JSL’s stables. Ms Laxon’s evidence was that she and Mr Symons conducted JSL as a training partnership.[1]
[1]T1455.16.

Unfortunately, the plaintiffs, who in the past were close friends of Mr Symons and Ms Laxon, have fallen heavily out of that friendship and have for some time been engaged in litigation with their former friends.

Between about 2006 and about 2010, the plaintiffs, and from time to time, Mr Fielding, acquired interests in the 29 horses which are the primary focus of this proceeding. Those horses are listed in the plaintiffs’ Schedule A.

In addition to these 29 horses, the proceeding also is concerned with an additional 23 horses (numbered from #31-52) which are relevant to Mr Fielding, and are listed in Mr Fielding’s Schedule E. There are 51 relevant horses in total (omitting a previously listed horse which was referred to as #4).

The plaintiffs’ central contention is that Mr Symons and Ms Laxon sold to them partial interests in racehorses in circumstances where the JSL parties failed to ensure that the plaintiffs would take good title to the horses. Mr Fielding also purchased racehorses from Mr Symons and Ms Laxon and placed his racehorses, or at least many of them, with JSL.

More specifically, the plaintiffs allege either that the JSL defendants failed to procure the necessary additional investors so as to be able to pay the Auction Houses from which the horses had been purchased (the Magic Millions and Inglis Auction Houses), or alternatively, that the JSL defendants failed to arrange for JSL itself to pay those vendors, so as to enable the plaintiffs and Mr Fielding to acquire good title to the horses in which they had agreed to take an interest.

The plaintiffs and Mr Fielding also allege that the JSL defendants failed to pay the vendor Auction Houses in relation to horses #21, 25, 27, 29 (Unpaid Horses), and that the JSL defendants thereby prevented the plaintiffs and Mr Fielding from obtaining title, and prevented those horses from being trialled or raced.

In addition, the plaintiffs allege that:

(a)Mr Symons and Ms Laxon altered the registration papers to be lodged with the Registrar of Racehorses of Racing Victoria Ltd (Racing Victoria) in relation to four horses, and thereby wrongfully prevented Mr Butler from being registered as Owner 1;
(b)Mr Symons, on behalf of the JSL defendants, sold the plaintiffs an interest in eight horses which Mr Symons said would be trained and prepared for the “Ready to Run Sales“ in Queensland in approximately November 2009 (Ready to Run Horses). The plaintiffs allege that Mr Symons and Ms Laxon did not train and prepare the Ready to Run Horses for the 2009 Sales, as they had said that they would; that ultimately the Ready to Run Horses were not entered into the Ready to Run Sales in late 2009; and that the Ready to Run Horses have since floundered, for the most part not undertaking any racing.
(c)Mr Symons and Ms Laxon have failed to repay a $50,000 loan which the Butlers made to them in early 2010, so as to prevent the sale of two horses threatened with repossession by Magic Millions; and
(d)Mr Symons and Ms Laxon have fallen short in a number of other ways as Trainers of racehorses in which the Butlers had an interest.

Mr Fielding’s allegations for the most part echo those of the Butlers.

The JSL parties raise a number of matters in their defence of the above allegations. These matters are summarised below. Most significantly, the JSL defendants allege that the plaintiffs and Mr Fielding have failed to pay large sums of money owing to JSL in relation to the training and care of many racehorses owned, or partly owned, by the plaintiffs and or Mr Fielding.

The Plaintiffs’ Case
Contractual claims

Many of the plaintiffs’ allegations stem from an alleged Joint Venture Agreement (JVA) which is said to have existed between the plaintiffs and Mr Fielding and the JSL defendants. The plaintiffs allege that the JVA governed the acquisition of their interests in each of the 29 horses in issue relevant to their case.

Under the JVA, asserted by the plaintiffs, it was contemplated that:

(a)the plaintiffs and Mr Fielding would acquire the respective ownership interests to the percentage which the plaintiffs allege in their particularised case in this proceeding;
(b)the JSL defendants would arrange for the balance of any ownership interest in each of the said horses to be acquired by JSL, Mr Symons, Ms Laxon or interested third persons; and
(c)Mr Butler would be the Manager, and JSL would be the Trainer, in respect of each of the horses.

The plaintiffs allege that in breach of the JVA, the JSL defendants failed to account to the plaintiffs, or other owners or syndicate members, in relation to certain horses. The plaintiffs also allege that the JSL defendants failed to account to them or inform them as to the location and state of health or race fitness of certain of the horses.

The plaintiffs also allege that the JSL defendants failed to account to the plaintiffs or inform them in relation to the payment of the initial acquisition costs for certain of the horses, and failed to account to the plaintiffs or inform them of the full training cost associated with each of certain specified horses.

Finally, the plaintiffs also make similar and related allegations, as detailed below, against the JSL defendants in respect of certain specified horses as particularised in the plaintiffs’ amended Statement of Claim dated 10 May 2013.

As a result of the breaches referred to above, and similar related breaches detailed below, the plaintiffs allege that they have suffered loss and damage. The loss and damage ultimately particularised by the plaintiffs related to:

(a)the JSL defendants’ failure to complete the purchase of the Unpaid Horses, specifically horses #21, 25, 27 and 29;
(b)the plaintiffs’ alleged losses in relation to the Ready to Run Horses, specifically horses #12 and 14-20;
(c)the wasted costs incurred by the plaintiffs in reserving places as part of a plan to sell horses #21, 25, 27 and 29 at an auction scheduled for 18 August 2011; and
(d)the loan of $50,000 advanced in January 2010 by the plaintiffs to the JSL parties.

The plaintiffs raise a defensive claim with respect to the JSL defendants’ counterclaim for unpaid training fees and costs. With respect to this matter, the plaintiffs claim that the JSL parties procured a situation where Mr Butler was not registered as the Manager of certain horses.

Trade Practices claims

In addition to their contractual claims, the plaintiffs also pursue the JSL defendants under the Trade Practices Act 1974 (TPA) and the Fair Trading Act 1999 (FTA), and/or the Competition and Consumer Act 2010 (CCA). The plaintiffs allege that shortly prior to the plaintiffs’ payment for certain of the horses, the JSL defendants made a number of representations to the plaintiffs, including that:

(a)if the plaintiffs took up certain ownership interests, the JSL defendants had the capacity to, and would, procure further syndicate members to acquire the balance of the ownership interests of each horse; and
(b)if third parties were not available to complete a syndicate for any of the horses, the JSL defendants would themselves acquire the remaining ownership interest.

The plaintiffs allege that the JSL defendants represented that after receiving the plaintiffs’ payment with respect to certain horses, the JSL defendants would ensure that the respective Auction Houses would be promptly paid the full balance due in respect of those horses.

Further, the plaintiffs allege that the JSL defendants represented that they would ensure that the plaintiffs (and any ownership syndicate including them) would promptly obtain any necessary papers from those Auction Houses in relation to certain horses, so that:

(a)the plaintiffs (and any ownership syndicate including them) would have clear title to each horse; and
(b)training could commence immediately for the horses so that they could be race trialled and raced at the earliest reasonable date.

Finally, the plaintiffs allege that the JSL defendants represented they would keep the plaintiffs properly informed as to each of the above matters.

The plaintiffs also allege that separate and additional representations were made by the JSL defendants in about early March 2009 to the effect that:

(a)certain horses were yearlings suitable to purchase and prepare for sale at the Ready to Run Sales in 2009; and
(b)the defendants would be able to, and would in fact, train each of the relevant horses to the standard required to sell them at the Ready to Run Sales in 2009 unless the plaintiffs and Mr Fielding and the JSL defendants otherwise agreed to keep any identified horse which was regarded as a “good one”.

The plaintiffs say that each of the above representations was false and untrue in respect of the relevant horses, and allege that for those reasons, JSL engaged in misleading and deceptive conduct or conduct likely to mislead or deceive contrary to the the TPA, the FTA, and/or the CCA. Similarly, the plaintiffs allege that Mr Symons and Ms Laxon also engaged in misleading and deceptive conduct, or conduct likely to mislead or deceive, contrary to the said Acts.

The plaintiffs also pursue a case which relies upon the said representations relating to future facts, and therefore establishing a cause of action under s 51A of the TPA, s 4 of the FTA and s 4 of Schedule 2 of the CCA.

The plaintiffs allege further and alternatively that insofar as the representations relied upon were contraventions of the said Acts by JSL as principal, then Mr Symons and Ms Laxon aided, abetted, counselled, procured, induced or were directly or indirectly knowingly concerned in those contraventions within the meaning of s 75B of the TPA and s 75B of the CCA. The plaintiffs also claim that such contraventions caused them to suffer loss and damage within the meaning of the said Acts.

The plaintiffs further allege that on or about 2 January 2010 they agreed with the JSL defendants that in order to prevent Magic Millions from repossessing horses #21 and 23, the plaintiffs would lend $50,000 to the JSL defendants, by way of payment to Magic Millions in reduction of the JSL defendants’ account (Loan Agreement). This Loan Agreement was on terms, the plaintiffs allege, that:

(a)the plaintiffs would lend the JSL defendants the said sum by paying that sum on JSL’s behalf to Magic Millions in reduction of the JSL account with Magic Millions; and further
(b)the JSL defendants would repay the $50,000 loan to the plaintiffs upon reasonable prior demand, or upon the JSL defendants procuring third persons to acquire the outstanding ownership interest in horses #21 and 23, whichever first occurred.

The plaintiffs allege that the JSL defendants also breached this Loan Agreement, leading to loss and damage being suffered by the plaintiffs.

Further, the plaintiffs allege that in about March 2009, the plaintiffs agreed with Mr Fielding that the JSL defendants and the plaintiffs would acquire eight horses selected by Mr Symons, with an equal contribution by the plaintiffs and Mr Fielding respectively for the full purchase price of each horse. In return for the JSL defendants training those horses to the stage where they could be sold as Ready to Run Horses and bearing all costs associated with their training, the JSL defendants were to receive a one-third interest in each of the horses (the ‘Ready to Run Agreement’).

The plaintiffs allege that the Ready to Run Agreement included terms that the plaintiffs and Mr Fielding would respectively pay in equal shares the full acquisition cost of the specified Ready to Run Horses, and the JSL defendants were entitled to nominate one of themselves to be registered as the owner of a one-third interest in each of the Ready to Run Horses without contributing to the acquisition costs. The alleged arrangement was one under which JSL would by contributing the value of the training and associated costs acquire a one-third interest in the sale proceeds received for these horses and the plaintiffs and Mr Fielding would likewise be entitled to one-third of such receipts.

The plaintiffs allege that the JSL defendants breached the Ready to Run Agreement in various ways, including that:

(a)they purported to invoice the plaintiffs for the training costs associated with the Ready to Run Horses in the sum of $41,023.34;
(b)none of the Ready to Run Horses have in fact reached the stage of being “ready to run”, save for horse #12;
(c)none of the Ready to Run Horses were entered into the 2009 Ready to Run Sales; and
(d)none of the Ready to Run Horses have been raced.

The plaintiffs allege that by reason of the JSL defendants’ breaches of the Ready to Run Agreement, the plaintiffs have suffered loss and damage, and further, the plaintiffs have incurred the costs of reserving places to sell certain of the horses at auction, adding further to the plaintiffs’ loss and damage.

The plaintiffs also make a number of general claims as part owners of the relevant horses against the JSL defendants for:

(a)wrongfully, and without the plaintiffs’ consent or authority, transferring some specific horses out of the State of Victoria; and
(b)breaching an agreement between the plaintiffs and JSL that JSL would be appointed Trainer of each of the certain specified horses until such time as the Manager, or a majority of the ownership interest for each of the horses, decided otherwise.

The plaintiffs also contend that this conduct by the JSL defendants breached certain Training Agreement terms, including by:

(a)not appropriately caring for and training certain horses; and
(b)not properly consulting Mr Butler as Manager for each of certain horses, including in advance of decisions made in respect of entering those horses into races, the relocation of those horses and the incurring of significant costs (including out of the ordinary veterinary, shearing/farrier, external training or housebreaking costs).

The plaintiffs make a number of additional allegations in relation to their general claims as part owners of certain horses and allege that they have suffered loss and damage thereby.

The plaintiffs also seek damages for breaches of the JVA and relief in relation to the alleged instances of prohibited conduct pursuant to s 82 of the TPA, s 159 of the FTA and s 236 of Schedule 2 of the CCA.

The plaintiffs’ Amended Statement of Claim also makes other allegations, and claims for relief, however those allegations have been rendered irrelevant by the parties Agreed List of Issues, and were not pressed by the parties at trial.

The particulars attached as Schedule A provides the plaintiffs’ details in relation to the 29 horses which are referred to in their claims.

The JSL defendants’ case

The JSL defendants detail in Schedule B their assertions as to ownership in the various racehorses in issue in this proceeding, and also provided as part of their pleadings a statement as to aspects of the JSL defendants’ position in relation to many of those horses.

The JSL defendants also allege that in about March 2009, Mr Symons entered into an agreement with Mr Butler and Mr Fielding in relation to the purchase as yearlings of horses #12 and 14-20, referred to by the parties as the “Ready to Run Horses”, on the basis that each of Mr Symons and Mr Butler and Mr Fielding would have an equal interest in those horses.

It is further alleged by the JSL defendants that after purchase those horses would be cared for and trained by the JSL defendants. The costs of care and training would be credited to the JSL defendants as their contribution to the purchase price of the horses, at rates of payment in line with the JSL defendants’ normal charges for care and training.

The JSL defendants also allege that the Ready to Run Agreement included the standard terms and conditions contained in the Australian Trainers’ Association Contract (ATA Terms) relating to the training of racehorses.

There were numerous further terms of the Ready to Run Agreement alleged by the JSL defendants, including, as above, that under that agreement that the initial purchase price for each of the relevant horses would be paid (in equal parts) by Mr Butler and Mr Fielding. Mr Symons would contribute his share of the purchase price by means of off-setting the charges for the care and training of the horses to the value of one-third of the purchase price of each horse. Each party, that is the plaintiffs and Mr Fielding and the JSL parties, would thereby acquire a one-third share.

The JSL defendants also allege that the Ready to Run Agreement provided that after Mr Symons had contributed his third of the purchase price in this way, the JSL defendants would thereafter be entitled to be paid the ongoing fees for the cost of caring for and training the horses. Those fees would be paid by Mr Butler, Mr Fielding and Mr Symons in equal shares.

The JSL defendants, however, disavow the existence of any agreement in the nature of a JVA, as is alleged to exist by the plaintiffs and also by Mr Fielding.

The JSL defendants allege that the plaintiffs acquired their share in the relevant racehorses in the knowledge that Mr Symons intended to arrange for the remaining share of each racehorse to be taken up by a third party or parties (other owners), and/or by Mr Symons or Ms Laxon. The JSL defendants also allege that the plaintiffs knew that each of the owners of the shares in each racehorse would be responsible for the training and other associated costs of the horse in proportion to their share of ownership in the horse.

The JSL defendants allege that no overarching agreement was reached that Mr Butler would be the Manager of the horses in which he had a share. The JSL defendants say that the appointment of a Manager in respect of each horse was a matter for the owners of each horse when all shares in each horse were taken up. More specifically, the JSL defendants say that the position was that the Manager of each horse was to be the person appointed by the majority shareholders in the horse. Therefore, such appointments could only be made after all the shares in the relevant horse had been taken up.

The JSL defendants also allege that by an agreement made in about 2006 or 2007, Mr Symons agreed with the plaintiffs and also with Mr Fielding (and where applicable with the other owners of the relevant racehorses), to train racehorses for the plaintiffs and Mr Fielding on the written terms set out in the ATA Terms. The JSL defendants allege that all the racehorses referred to in Schedule B were trained subject to the terms of the ATA Terms.

In addition to the ATA Terms, the JSL defendants allege that a number of further terms constituted part of such agreement, including:

(a)that there was a training fee for each racehorse trained by JSL, by way of an amount per horse per day (or part thereof) specified by JSL to each of the plaintiffs and Mr Fielding; and
(b)that the training fee could be varied from time to time by notice in writing to the plaintiffs and Mr Fielding, whether via the rendering of an account or otherwise.

The JSL defendants also allege that the plaintiffs and Mr Fielding were to pay JSL the training fees and all additional costs, expenses or charges levied by JSL (including transport, veterinary, farrier, dentistry, race nominations, jockey fees and race day fees), in respect of each horse trained, plus GST, within seven days of the issue of an invoice for those sums. The fees were to be paid in accordance with the proportion of their respective ownership of each horse trained.

In addition, the JSL defendants allege that on default of payment by the plaintiffs or by Mr Fielding, the JSL parties were entitled to compound interest on any sum due at the rate of 2 per cent per month, as a result of the operation of the ATA terms.

The JSL defendants also allege that the ATA Terms provided, amongst other things, for the plaintiffs and Mr Fielding to indemnify the JSL defendants in certain circumstances, including for all legal costs and expenses incurred as a result of default in payment and taking action to enforce compliance with the ATA Terms. Moreover, the JSL defendants say that the agreement provided that in default of payment, they were to retain possession of any horse until the training fees and other fees were paid, and likewise to retain possession of all papers and documents including registration papers of the horse.

The JSL defendants further allege that the Training Agreement included terms relating to a right of first refusal given to the JSL defendants in the event that the owner intended to sell a relevant horse.

As an alternative to the Training Agreement incorporating the ATA Terms, the JSL defendants allege that the plaintiffs and Mr Fielding agreed to pay the JSL defendants’ usual charges in relation to the care and training of horses provided by the JSL defendants (the ‘Alternative Agreement’).

The JSL defendants agree with the plaintiffs that horses #14, 21, 24, 25, 27, 29 and 30 in Schedule A had not been registered with Racing Victoria as at 27 September 2011. The JSL defendants also assert that the plaintiffs and Mr Fielding were indebted to JSL for training fees and that the JSL defendants were not obliged to lodge the papers or make them available for lodging pursuant to the terms of clause 7.1(f) of the ATA Terms.

In addition to disavowing the existence of the plaintiffs’ and Mr Fielding’s alleged JVA, the JSL defendants deny breaches of the alleged JVA and say both that they kept the plaintiffs informed of all relevant matters relating to each of the racehorses, and that the plaintiffs were familiar with the situation pertaining to each of the horses and were actively engaged in the operation of the defendants’ business. In particular, the JSL defendants allege that Mr Butler worked as a driver for the JSL defendants, that Mrs Butler assisted in administration, and that both of the plaintiffs attended the JSL defendants’ training facility almost daily.

The JSL defendants also say that there were discussions between the plaintiffs and Mr Symons and Ms Laxon from time to time concerning each of the horses, and that written reports were provided to all owners by the JSL defendants on a regular basis.

Further, the JSL defendants raise several responses to the plaintiffs’ asserted Loan Agreement. The JSL defendants respond by saying that the payment of $50,000 made by the plaintiffs to Magic Millions was not a loan to the JSL defendants (or any of them individually). Rather, the JSL defendants say that it was in fact a payment made subsequent to an agreement between Mr Butler and Mr Symons, pursuant to which Mr Butler agreed that the plaintiffs would take an increased share in either horse #21 or 23. The JSL defendants say that after making payment of the $50,000 concerned, the plaintiffs failed to nominate which of the horses the payment related to.

In relation to the plaintiffs’ allegations about the Ready to Run Agreement the JSL defendants say:

(a)that there was no agreement between the plaintiffs and the JSL defendants in the terms of the plaintiffs’ alleged Ready to Run Agreement; and
(b)that the horses which the plaintiffs say were the subject of the alleged Ready to Run Agreement were in fact simply purchased to be trained by the JSL defendants and raced.

The JSL defendants say that the terms of the agreement under which the horses, alleged by the plaintiffs to be the Ready to Run Horses, were in fact purchased are as follows:

(c)…
(i)that the plaintiffs, the second defendant, and Fielding would each contribute equally to the purchase price of the horses;
(ii)that the contribution to be made by the second defendant would be by way of an offset of training fees incurred by the defendants to the same value as the monetary contributions made by the plaintiffs and by Fielding;
(iii)that once the contribution made by the defendants was of the same value as the monetary payments made severally by the plaintiffs and Fielding training fees were to be paid in relation to each of the horses on the basis that the plaintiffs, the defendants, and Fielding each held a one-third share in each of the horses;

(d)each of the horses alleged by the plaintiffs to be the subject of the alleged “Ready to Run Agreement” were cared for, broken in and educated and then prepared as racehorses by the defendants, with the knowledge and consent of the plaintiffs and Fielding as racehorses for the purpose of being raced.

The JSL defendants deny that, without the plaintiffs’ prior consent or authority, they transferred some of the horses listed in Schedule A, in particular horses #8, 9, 16, 22, 24 and 28 out of Victoria to Queensland. The JSL defendants say that the plaintiffs were at all material times aware that they intended to take these horses to Queensland to race, and that this would occur if the majority of owners agreed.

The JSL defendants also say that the racehorses taken to Queensland in about April 2011 were taken with the consent and agreement of the majority of owners of those horses in each case. The JSL defendants say that the horses were taken for the proper purpose of racing them in Queensland and that each of the horses was returned to Victoria. Finally, the JSL defendants say that the plaintiffs acquiesced to the racing of such horses in Queensland and benefited therefrom.

The JSL defendants admit the plaintiffs’ allegation that the plaintiffs agreed with JSL that JSL would be appointed Trainer of each of the horses in Schedule A until such time as the Manager, or a majority of the ownership interests in each horse, decided otherwise. On the JSL defendants’ case, this was done on the terms of the JSL Training Agreement, which included the terms of the ATA Terms.

The JSL defendants also say that, if the terms and conditions of the ATA Terms are not applicable to the plaintiffs and Mr Fielding, then the plaintiffs and Mr Fielding had agreed to pay the JSL defendants their usual charges in relation to the care and training of the horses provided by the JSL defendants. This part of the JSL defendants’ case reflects the Alternative Agreement referred to above.

The JSL defendants deny all of the plaintiffs’ allegations of breach of the plaintiffs’ alleged Training Agreements and that any damage was suffered by the plaintiffs as a result.

JSL defendants’ counterclaim against the plaintiffs and Mr Fielding

In their counterclaim against Mr Fielding, the JSL defendants rely upon their Training Agreements and, in the alternative, the Alternative Agreement, to establish an entitlement to be paid their usual charges in relation to the care and training of the horses.

The JSL defendants allege that JSL trained and cared for horses for the plaintiffs and Mr Fielding in the period from 2006 to 2011 and in doing so became entitled to training fees and other costs and expenses incurred in respect of the horses, as detailed in Schedule C.

JSL also claims an entitlement in respect of the sums set out in JSL’s monthly statements and invoices rendered to the plaintiffs and to Mr Fielding, including the daily training fees and other amounts detailed therein.

JSL claims that since April 2011, the plaintiffs and Mr Fielding have failed to pay JSL the sums due for training under the Training Agreement and the ATA Terms.

JSL therefore says that the plaintiffs are indebted to it in the sum of $177,347.15 (excluding interest), subject to any successful defences and set-offs brought by the plaintiffs as agreed between the JSL parties and the plaintiffs as at 31 March 2013.[2]
[2]Schedule – JSL Claim Particulars as Provided on 29 April 2013, attached to the plaintiffs’ Closing Submissions [298].

Further, JSL alleges that because of the breaches effected by the plaintiffs and Mr Fielding, it has suffered loss and damage.

The JSL parties also claim that they enjoy a Trainer’s lien, or alternatively a common law lien, over all of the racehorses listed in Schedule A still in their possession. The claimed liens relate to unpaid training fees and other amounts set out in Schedule C.

In addition, JSL seek a declaration that it has a lien over all the racehorses in Schedule B and/or Schedule C, or alternatively in relation to the horses referred to in paragraph 4 of the JSL defendants’ Second Further Amended Statement of Claim, over all of the net proceeds of the sale of those horses in respect of JSL’s outstanding training fees. JSL also seek an order for the sums alleged to be owing to it by the plaintiffs, and asks that that sum be paid to JSL from the plaintiffs’ share of any proceeds of sale of relevant racehorses.

Claims of Injurious Falsehood – not relevant at trial

Further, Mr Symons and Ms Laxon had advanced a claim in this proceeding against the plaintiffs for defamation and/or for injurious falsehood. Those claims were the subject of Orders made by the Honourable Justice Judd on 26 March 2013,[3] and as a result, were not part of the trial of these proceedings.

Plaintiffs’ reply to the JSL defendants’ Second Further Amended Defence and Defence to the Further Amended Counterclaim

[3]See Orders, Francis Kevin Butler and Karen Maree Butler v JSL Racing Pty Ltd & Ors (Supreme Court of Victoria, Proceeding No. S CI 2011 03522, Judd J, 26 March 2013) [9], [10] and [11].

By its pleading dated 19 April 2013, the plaintiffs detailed their allegations in reply to the JSL defendants’ alleged Purchase Agreement. The plaintiffs admit that they acquired their share in the racehorses knowing that Mr Symons intended to arrange for the remaining share in each racehorse to be taken up by another person, and/or Mr Symons or Ms Laxon themselves, and that the owners would be responsible for the training and associated costs relating to the racehorse in proportion to the share they held. However, the plaintiffs say that this arrangement was only for horses other than the Ready to Run Horses. The plaintiffs say that in relation to the Ready to Run Horses they did not ever agree to, or expect, any additional owners beyond themselves, Mr Fielding and JSL.

The plaintiffs say in relation to the JSL defendants’ alleged Training Agreement in 2006 or 2007, including the ATA Terms, that they admit receiving invoices from JSL in 2006 and 2007, but deny that they received any which included the ATA Terms during that period.

Further, the plaintiffs say that on 27 March 2010 the JSL defendants emailed the plaintiffs a bundle of six pages of invoices, and on the last page of the six pages was printed:

ACCOUNT for ALL SERVICES provided are rendered pursuant to the Agistment Act and in conjunction with details on “Arrival Terms and Conditions”.

The plaintiffs also say that on 10 April 2010 the JSL defendants emailed them a bundle of 31 pages of invoices, and on page 30 of 31 was printed the same above endorsement as set out in italics. The plaintiffs also say that there is no such legislation as the Agistment Act, and that they are unaware of, and have never been provided with, the Arrival Terms and Conditions referred to above.

The plaintiffs say that on one occasion in or about October 2010, the JSL parties showed them a bundle of invoices which appeared to have printed terms on the reverse. The JSL invoices were also shown by Ms Laxon to Mrs Butler while in a vehicle in which the parties were travelling to a race meeting. The terms printed on the reverse of the invoices then provided were the subject of a brief discussion, the substance of which, the plaintiffs say, was that Ms Laxon commented that the invoices included the JSL defendants’ terms of agreement on the back. Mrs Butler says that she did not pay much attention to what was on the back of the invoices mentioned. Neither of the plaintiffs was given a copy of that bundle of invoices by the JSL defendants at that time.

Subsequently, in early March 2012, the plaintiffs received from the JSL defendants a bundle of 24 pages of invoices dated 8 March 2012, which set out the ATA Terms. However, the plaintiffs’ evidence[4] is that they did not retain copies of the invoices received between April 2006 and March 2007 and that those documents were destroyed in about early 2010 when they moved home from Melbourne to Seymour.
[4]T1260.1.

The plaintiffs’ case is that if any invoices including the ATA Terms were provided to them by the JSL defendants between April 2006 and March 2007, or at any other time prior to the issue of these proceedings, those documents were either:

(a) post-contractual;
(b)not sufficiently drawn to their attention by the JSL defendants so as to be incorporated at law into the parties’ contract;
(c)were not drawn to their attention at all;
(d)alternatively, the JSL defendants ceased applying, and abandoned, the provisions of the invoices including the ATA Terms by no later than April 2007. Thereafter, the JSL parties consistently, apart from isolated examples, rendered invoices with no endorsed or attached ATA Terms.

The plaintiffs also say that by the time of the plaintiffs’ acquisition of the racehorses involved in this proceeding, namely between March 2008 and March 2010, and the retainer of the JSL defendants as Trainers, there was no relevant consistent prior course of dealings between the plaintiffs and the JSL defendants sufficient to incorporate the ATA Terms.

The plaintiffs also deny the existence of the JSL defendants’ alleged Alternative Agreement, that if the ATA Terms did not apply then the plaintiffs (and Mr Fielding) had agreed to pay the JSL defendants’ usual charges in relation to the care and training of the horses provided by the JSL defendants (or any of them).

In relation to the JSL defendants’ case that:

(a)they kept the plaintiffs informed as to the movements of each of the relevant racehorses; and
(b)the plaintiffs were familiar with the situation pertaining to those horses, and actively engaged in the JSL defendants’ business including the first plaintiff working as a driver and the second plaintiff assisting in the administration and attending the JSL defendants’ training facility daily;

the plaintiffs’ case is that they were not properly informed by the JSL defendants, or reported to, in relation to the matters alleged by the plaintiffs at paragraph [9] of their Amended Statement of Claim dated 10 May 2013. These matters included the state of ownership of each of the relevant horses.

The plaintiffs also allege breaches by the JSL defendants in relation to the alteration of registration papers to procure Mr Symons or Ms Laxon as the Manager of horses #13, 23, 24 and 28. In addition, the plaintiffs complain of the JSL defendants’ alleged failure to account to the plaintiffs, or inform them in relation to the payment of the initial acquisition cost of horses #21, 23, 25, 27 and 29.

Likewise, the plaintiffs allege:

(a)that they have incurred the JSL defendants’ training costs associated with each of those horses;
(b)JSL’s failure to procure the balance of the ownership interests in horses #21, 25, 27 and 29 beyond the percentage required by the plaintiffs and Mr Fielding; and
(c)JSL’s failure to ensure that horses #21, 25, 27 and 29 were fully paid for so that trialling and racing could start at the earliest possible date for each horse.

The plaintiffs also say that the JSL defendants did not inform them that horses #21 or 23 had ever suffered any significant or material injury.

The plaintiffs do, however, admit that Mr Butler assisted the JSL defendants as a paid driver and horse handler, and that Mrs Butler assisted the JSL defendants on occasions as a casual unpaid office assistant. In all other respects, the plaintiffs deny the level of familiarity alleged by the JSL defendants in connection with the relevant horses.

In relation to the JSL defendants’ allegation that the $50,000 payment by the plaintiffs to Magic Millions was a payment made pursuant to an agreement between Mr Butler and Mr Symons, as outlined above, the plaintiffs deny such an agreement and add that such an agreement would in any event be void for uncertainty. The plaintiffs also say that the consideration for the advance of $50,000 by them has wholly failed, and that the JSL defendants are indebted to them for that $50,000.

It is clear on the parties’ pleadings and outlined cases that there was no dispute that $50,000 was advanced by the plaintiffs to the JSL defendants in about January 2010 and the plaintiffs have demanded repayment of the said $50,000, which has not occurred.

In relation to the Ready to Run Agreement, the plaintiffs claim that the Ready to Run Horses were to be trained to the point of being able to be raced or sold as “ready to run”, and also allege that the JSL defendants’ accounts in relation to those horses demonstrate that those horses received 11 weeks of training or less, over a period of two and a half years, including:

(i)#14 Undoubtedly/Homeland Sheila – 10 weeks work in total;
(ii)#18 Star of Elves – 11 weeks work in total;
(iii)#19 Giello – 11 weeks work in total; and
(iv)#20 French Royale – 10 weeks work in total,

which period of training was completely inadequate to train such horses to the point of being able to be raced or sold as “ready to run”.

As to the JSL defendants’ allegations that the plaintiffs were at all times aware that they intended to take horses to Queensland to race, and would do so if the majority of owners agreed, the plaintiffs say that the JSL defendants were not permitted to move any of the horses interstate in the absence of the Manager’s consent. In addition, the plaintiffs deny that the majority of the ownership interests ever consented to the JSL defendants moving any of the horses in issue interstate. Further, the plaintiffs say that the JSL defendants used materially altered paperwork to unlawfully move horse #28 interstate.

As to the JSL defendants’ allegation in relation to transporting and racing horses in Queensland, namely that the plaintiffs acquiesced to those matters and benefited from them, the plaintiffs refer to and rely upon a series of emails circulated on 13 and 14 April 2011 and emails of 26 April 2011, which the plaintiffs assert disprove that allegation.[5]
[5]CB343-349 and CB351-354.

The plaintiffs also point out that in their pleaded case, save for denials, the JSL defendants have pleaded no defence to the plaintiffs’ claims relating to the material alteration of documents lodged by the JSL defendants with Racing Victoria, without prior proper authority of the plaintiffs.

Plaintiffs’ Defence to the Second Further Amended Counterclaim

The plaintiffs say in relation to the JSL defendants’ Counterclaim (in addition to their defences and positive allegations in their Reply to the Second Further Amended Defence and Defence to Further Amended Counterclaim of the JSL defendants, dated 19 April 2013, ([1]-[14]), that they admit that the JSL defendants trained the horses until about April 2011, at which time Mr Butler orally instructed Mr Symons to cease all such training. The plaintiffs, however, expressly deny any written terms and conditions of a Training Agreement as alleged by the JSL defendants.

Fourth defendant’s Second Further Amended Statement of Claim against the JSL defendants (dated 22 May 2013)

Mr Fielding’s case is that he was at all material times a part owner of the horses set out in Schedule D, except for horses #2, 9, 34, 37 and 44, in which Mr Fielding does not own a share. Mr Fielding also alleges that he remains part owner of those horses in respect of which his share has not been sold, as set out in Schedule D.

Mr Fielding says that pursuant to an agreement between the JSL defendants as seller and himself as the buyer, the JSL defendants agreed to sell him interests in horses #21, 25, 27, 29 and 51, and that the transfer of property in those horses was subject to a condition to be fulfilled by the JSL defendants, namely them making payment in full for each of the horses to the relevant Auction Houses, and to do so within a reasonable time.

Mr Fielding alleges that the above agreements to sell were partly oral, partly written, and partly to be implied. Insofar as they were oral, Mr Fielding says that the agreements were constituted by conversations between himself and Mr Symons on or about the time they were purchased from the relevant Auction House.

The written part of the agreements to sell are alleged by Mr Fielding to be constituted by the invoices from the JSL defendants to him requesting payment for horses #21, 25, 27, 29 and 51.

Mr Fielding also alleges that the Goods Act 1958 (Vic) (Goods Act) ss 6, 10, 15, 16 and 17 apply to the agreements to sell which he entered into with the JSL defendants.

Mr Fielding alleges that in breach of each agreement to sell, the JSL defendants failed to fulfil the condition that they would make payment in full to the original sellers for each horse within a reasonable time of purchase, or make payment at all in the case of horses #21 and 27.

Further, Mr Fielding alleges that by reason of the above matters and the non-fulfilment of the payment condition of each agreement, the agreements to sell do not constitute binding and effective sales under s 6(4) of the Goods Act.

Mr Fielding also says, in the alternative, that if a contract of sale existed in relation to each of the horses #21, 25, 27, 29 and 51 (which he denies), the non-payment by the JSL defendants for the horses concerned meant that they did not have the right to sell those horses to him at the time when the property was to pass by reason of s 17(a) of the Goods Act. Mr Fielding alleges that the JSL defendants have thereby repudiated the contracts of sale.

Mr Fielding says that because of the JSL defendants’ breaches of the agreements to sell, or alternatively the contracts of sale, that he has suffered loss and damage in the nature of the costs incurred by him in acquiring an ownership interest in, and training and other expenses for, horses #21, 25, 27, 29 and 51.

Mr Fielding alleges in a further or alternative claim that at the time he acquired his interest in each of the said horses he did so under a Joint Venture Agreement with the JSL defendants (Fielding JVA). Under this agreement, Mr Fielding would acquire an ownership interest in each of the horses which had been purchased (or in the case of horse #5, bred) by the JSL defendants for the purpose of racing, and the JSL defendants were to be the Trainer of each of these horses. The agreement, insofar as it was oral, was constituted by conversations between Mr Fielding and Mr Symons at the time Mr Fielding agreed to acquire ownership in the horses purchased or bred by the JSL defendants. Insofar as it was implied, it was said to be implied from the conduct of the parties between 2005 and 2010, specifically Mr Fielding acquiring interests in horses purchased or bred by the JSL defendants, and implied to give business efficacy to the joint venture and by law.

Mr Fielding also alleges a number of specific terms of the Fielding JVA, including that he would acquire a percentage in each of the horses as set out in Schedule D and that the JSL defendants would train each of the horses subject always to the right of owners to change Trainers. Mr Fielding also alleges that the JSL defendants were to ensure that the purchase price for each of the horses was fully paid to the respective seller of the horse within a reasonable time of purchase, and that the JSL defendants would ensure that at the earliest reasonable date each of the horses was able to be trained, trialled and/or raced so as to maximise the potential and value of each horse as a racehorse.

Mr Fielding also alleges that under the Fielding JVA it was agreed between him and the JSL defendants that:

(a)he would be informed of any impediment to a horse being able to be trained, trialled or raced;
(b)the JSL defendants would account to him for his share of any proceeds of sale received by them in respect of any of his horses; and
(c)the JSL defendants would act on the instructions of the Manager of each of the horses (as instructed by the majority ownership interests), including in relation to the physical location of the horses, the training of them and the ongoing care, health and racing of each horse.

Mr Fielding also alleges that he and the JSL defendants would do all things necessary to enable the other party to have the benefit of the Fielding JVA, and would act in good faith in the performance of their rights and obligations under the Fielding JVA. Mr Fielding alleges that the Fielding JVA was breached by the JSL defendants in that they:

(a)failed to ensure that the purchase prices of horses #21, 25, 27, 29 and 51 were fully paid to the sellers of the horses within a reasonable time of purchase, or paid at all in the cases of horses #21 and 27;
(b)failed to ensure that at the earliest reasonable date each of horses #21, 25, 27, 29 and 51 were able to be trialled and/or raced, so as to maximise the potential and value of each of those horses as a racehorse;
(c)failed to inform him of impediments to horses #21, 25, 27, 29 and 51 being able to trial or race, namely:
(i)that the purchase price for each of the horses had not been fully paid, which meant they could not be registered; and
(ii)that horse #51 was held by “Springbank Horse Farm” pursuant to a lien against the Trainer for unpaid agistment fees after July 2010 and through to February 2012; and

(d)nonetheless charged him for training fees and other expenses for horses #21, 25, 27, 29 and 51, even though those horses could not trial or race.

Mr Fielding says that the above breaches of the Fielding JVA have caused him loss and damage.

Ready to Run Agreement

Mr Fielding alleges that in about March 2009 an agreement was reached between himself and the plaintiffs and the JSL defendants termed the Ready to Run Agreement. Pursuant to this agreement, Mr Fielding and the plaintiffs paid an equal share of the full purchase price and other acquisition costs of the Ready to Run Horses, which had been purchased by the JSL defendants. Mr Fielding alleges that these horses were to be trained by the JSL defendants to the stage that they could be sold as “ready to run” horses at no cost to the plaintiffs or to Mr Fielding, and that Mr Fielding and the plaintiffs and the JSL defendants respectively would be one-third owners of the Ready to Run Horses.

Mr Fielding asserts that the Ready to Run Agreement was also said to be partly written, partly oral and partly implied. Insofar as it was written, it was said to be constituted by invoices from the JSL defendants to Mr Fielding dated 20 March 2009 and 9 April 2009. The oral component of the Ready to Run Agreement is alleged by Mr Fielding to be constituted by conversations between himself and Mr Symons at a lunch meeting held in about March 2009 at West Lake Restaurant in Melbourne. The implied component of the agreement is said to arise from the allocation of ownership interests of one-third for each of Mr Fielding, the plaintiffs and the JSL defendants, and in order to give business efficacy to the Ready to Run Agreement.

Mr Fielding alleges that the Ready to Run Agreement required the JSL defendants to ensure that the Ready to Run Horses were trained up to the stage where each of them was able to be sold as a “ready to run” horse at auction prior to them becoming three year olds.

Mr Fielding also alleges that the Ready to Run Agreement comprised terms that if a Ready to Run Horse showed sufficient promise, he and the plaintiffs and the JSL defendants may decide to race it, and he and the plaintiffs would not be liable to the JSL defendants for any costs associated with training the Ready to Run Horses.

Mr Fielding says that the JSL defendants breached the Ready to Run Agreement by failing to ensure that any of the Ready to Run Horses were at a stage of being able to be sold as a “ready to run” horse at auction prior to them becoming three years olds, and also breached the Ready to Run Agreement by invoicing Mr Fielding for training costs for those Ready to Run Horses (in respect of some of which costs Mr Fielding mistakenly made payment).

Mr Fielding alleges that because of the breaches of the Ready to Run Agreement, he suffered loss and damage.

Accordingly, Mr Fielding’s claims against the JSL defendants are for:

(a)damages for breaches of the agreements to sell for horses #21, 25, 27, 29 and 51;
(b)damages for the breaches of the Ready to Run Agreement; and
(c)invoice costs for training the Ready to Run Horses, which Mr Fielding says he should not have to pay.

Mr Fielding also alleges that horse #34 was a brood mare owned by Ms Laxon named “Acclaim” and that he did not own an interest in, or was otherwise in any way liable for, the costs and expenses of that horse. Despite this, Mr Fielding says he has been invoiced by the JSL defendants for, and has paid costs and expenses in relation to Acclaim by mistake, and that he is entitled to recover the relevant sum. Alternatively, Mr Fielding says that there has been a failure of consideration for the payments which he has made, and that this money has the character of money had and received to the use of the JSL defendants.

Mr Fielding also responds, in his Closing Submissions, to the JSL defendants’ Counterclaims by means of a Schedule attached to Mr Fielding’s Closing Submissions. Mr Fielding’s Schedule of responses to the JSL defendants’ Counterclaims is attached as Schedule E.

JSL defendants’ response to Mr Fielding’s allegations

The JSL defendants allege that in about March 2009, Mr Symons entered into an agreement with both the plaintiffs and Mr Fielding relating to the purchase of horses #12 and 14-20 as yearlings, and that those yearlings were purchased for the purpose of racing. The JSL defendants also allege terms of the Ready to Run Agreement including that:

(i)Mr Symons and Mr Butler and Mr Fielding would have an equal interest in the above horses;
(ii)upon purchase of each of the horses, that horse would be cared for and trained by the JSL defendants who would be entitled to payment at their normal charges for care and training;
(iii)the ATA Terms would apply to the care and training of each horse;
(iv)initially the purchase price of each horse would be paid half by Mr Butler and the other half by Mr Fielding;
(v)Mr Symons would contribute his share of the purchase price for each of these horses by setting off the charges for care and training of the horses to the value of one-third of the purchase price for each horse as a “contra”;
(vi)after the contra for care and training fees in respect of the horse reached one-third of the purchase price, the JSL defendants were entitled to be paid by Mr Butler and Mr Fielding the ongoing fee in proportion to the ownership they held in the horse, namely a one-third share. As with nearly every arrangement in issue, the Purchase Agreement was partly in writing, partly oral and partly to be implied on the JSL defendants’ case.

Insofar as the Purchase Agreement was in writing, it was comprised by invoices provided by the JSL defendants to Mr Fielding, which the JSL defendants say incorporated the ATA Terms. Insofar as it was oral, it was comprised by conversations from time to time between Mr Symons, Mr Butler and Mr Fielding. Insofar as the Purchase Agreement was implied, the JSL defendants say that it was implied from Mr Fielding’s knowledge of the JSL defendants’ business and past dealings between the JSL defendants and Mr Fielding as to the training of racehorses. The JSL defendants say the Purchase Agreement was also to be implied from the ATA Terms and from the invoices forwarded by the JSL defendants to Mr Fielding between 2003 and March 2007 (which had endorsed on them the ATA Terms).

The JSL defendants also allege that there was a Training Agreement with Mr Fielding in relation to other racehorses in which Mr Fielding had an ownership share, and say that those other Training Agreements were ones which incorporated the ATA Terms, a number of which the JSL defendants rely upon.

Mr Symons says that the horses which he trained for Mr Fielding under the Training Agreement are those set out in Schedule B.

The JSL defendants also say as an alternative claim to their claim under the Training Agreement, they allege that if Mr Fielding did not have knowledge of the ATA Terms, he had nonetheless agreed to pay the JSL defendants’ usual charges in relation to the care and training of horses provided by the JSL defendants. This alternative agreement was said to be partially oral and partially implied and partially evinced by the invoices incorporating the ATA Terms.

The oral part of the agreement is said to be constituted by conversations between Mr Symons and Mr Butler, and conversations between Mr Symons and Mr Fielding, from time to time concerning the training of racehorses in which Mr Fielding held a share.

Insofar as the JSL alternative agreement was implied, it is said to be implied from the JSL defendants’ rendering of invoices for the care and training of horses listed in the schedule at the JSL defendants’ normal rates, and Mr Fielding’s acceptance and payment of such invoices without issue.

The JSL defendants also admit that the Fielding JVA contained the terms alleged by Mr Fielding in paragraph 6(a), (b), (c)(ii), (c)(iii) and (c)(iv). Those terms alleged by Mr Fielding are, in essence, that:

(a)under Mr Fielding’s alleged JVA, Mr Fielding would acquire a percentage interest in each of the horses as set out in Mr Fielding’s Annexure A (being an earlier version of Schedule D) to his pleading;
(b)the JSL defendants would be the Trainer for each of the horses, subject to the potential right of the owner of the horses to choose Trainers;
(c)the JSL defendants would ensure that at the earliest reasonable date each of the horses was able to be trained, trialled and/or raced so as to maximise the potential and value of each of the horses as a racehorse;
(d)the JSL defendants would inform Mr Fielding of any impediment to a horse being able to be trained, trialled or raced; and
(e)the JSL defendants would account to Mr Fielding for his share of any proceeds of sale received by them in respect of any of the horses.

However, the JSL defendants deny that there ever existed between them and the plaintiffs or Mr Fielding, the Fielding JVA in the terms alleged by Mr Fielding.

The JSL defendants also say that the Manager of each horse was to be appointed by a majority of the owners and that this did not occur.

The JSL defendants also admit, as alleged by Mr Fielding, that the JSL defendants were to act on instructions from the Manager, although they point out that that is predicated on a Manager being appointed in relation to each of the horses. Such an appointment could only occur in accordance with the wishes of a majority of the respective owners’ interests in each horse. The JSL defendants further say that they deny the breaches of the alleged Fielding JVA, and that horses #21, 23, 25, 27 and 29 were not part of any such JVA, rather they were subject to an agreement under which the JSL defendants trained the said horses (and other horses in which Mr Fielding had an interest) pursuant to the ATA Terms.

Otherwise the JSL defendants generally deny Mr Fielding’s allegations.

Parties’ List of Agreed Issues

The parties provided a joint Agreed List of Issues[6] arising in the proceeding (Agreed Issue/s). The joint Agreed Issues is attached as Schedule H.
[6]T1467.8-11; T1469.5-8 and T1755.

I consider that the parties’ Agreed Issues defines the issues to be addressed to dispose of the disputes in this proceeding. I also consider that the Agreed Issues, by the agreement of all parties, identifies the issues the parties seek to have decided.

Parties’ Agreed Chronology

During the course of the hearing the parties agreed with the details which the plaintiffs had put forward in the plaintiffs’ Chronology[7] (‘Parties’ Agreed Chronology’). That chronology is attached as Schedule F.
[7]T1465.21-23; T1466.27-30; T1467.3-5; T1468.25-31 and T1469.9-29.

Interlocutory background

On 4 November 2011 Habersberger J heard the plaintiffs’ application for:

(a)an order that nine horses be sold by public auction under certain suggested directions;
(b)an order relating to other horses where part owners of those horses are not before the Court;
(c)some orders relating to the disclosure of the whereabouts of an unnamed colt; and
(d)orders relating to what is to happen to a number of other horses currently in [the] possession of the first and third defendants pending the trial of the action.

His Honour made the following substantive orders:

2.Each of the horses numbered #2, #9, and #14 to #20 (inclusive) in the list in paragraph 4 of the Statement of Claim be sold by public auction at the first reasonable opportunity, subject only to the following matters:
…
(f)the net proceeds of sale after selling costs be paid into an interest bearing account jointly controlled by the solicitors for the plaintiffs and the first to third defendants and to be held pending the final determination of these proceedings by agreement or final judgment, provided that the share of the net proceeds of sale of the first to thirdnamed defendants are to be paid out of the said joint account to the solicitors for the first to thirdnamed defendants…

3.Subject to the plaintiffs obtaining after the date of this order the consent in writing of all other co-owners in any of the other horses listed in paragraph 4 of the statement of claim (in addition to those the subject of order 2 above), other than the consent of the defendants, then the plaintiff shall be at liberty to sell such horse by public auction as if order 2 applied to it, and:
…
(b)Order 2(b) to (g) shall otherwise apply to any such sale of any such horse.

4.The first to thirdnamed defendants are ordered:
(a)within 2 business days of this order to disclose to the plaintiffs’ solicitors the location of the Unnamed colt out of Darci Brahma & Giovanna (horse #30 in the list in paragraph 4 of the Statement of Claim); and
(b)to forthwith do all acts (including signing all necessary documents) required of them to enable the transportation of the said horse from New Zealand to Victoria.

5.Subject to orders 2 to 4 above, until the final determination of this proceeding, all of the horses listed in paragraph 4 of the Statement of Claim of which the firstnamed plaintiff is manager, or in respect of which the firstnamed plaintiff is hereafter appointed as manager, and which horses are currently in possession of the first to thirdnamed defendants:
(a)Shall not be the subject of any further training costs without the prior consent of the firstnamed plaintiff in writing; and
(b)Shall not be moved from their present location, or raced or trained or otherwise dealt with, without the prior consent of the firstnamed plaintiff in writing;

…

8. Liberty to any party to apply is reserved.

Key agreements largely oral

Although this proceeding is concerned with a large number of agreements and transactions in relation to identified horses #1-52 (horse #4 is omitted), none of the pivotal agreements are in writing, with the exception of the JSL defendants’ claim that the ATA Terms printed on the back of JSL invoices form part of the Training Agreement between the parties. Rather, the agreements are said to be substantially constituted by conversations which occurred over an extensive period of time, principally between Mr Butler and Mr Symons and Mr Symons and Mr Fielding.

The critical agreements and dealings between the parties were oral. It is also a significant feature of this case and the evidence adduced by the parties that there is very little documentary evidence which expressly confirms or clarifies the many alleged oral agreements upon which this case largely turns.

The evidentiary credit of the parties to this proceeding

Because of the nature of the cases advanced by the parties and in particular because of the oral nature of the evidence said to inform the many key agreements and related conversations, the veracity and acceptability of the evidence given by the plaintiffs and the second to fourth named defendants is of particular importance in my task of resolving the parties many conflicting accounts and positions.

In my view this is a case in which, for reasons I will shortly explain, the evidence of the JSL defendants is severely undermined in relation to a number of important issues, and generally by the impugned credibility of the evidence given by Ms Laxon during the course of the trial and the often unreliable and unsatisfactory evidence given by Mr Symons.

The Joint and Corporate Position of Mr Symons and Ms Laxon

I have described the roles and working relationship of Mr Symons and Ms Laxon in paragraph 4.

Given the routine and comprehensive collaboration between Mr Symons and Ms Laxon in all important aspects of running and managing the JSL business, I consider it highly likely that Mr Symons and Ms Laxon are constantly informed as to and approve the other’s decisions and conduct in running and managing the business. Furthermore, Ms Laxon authorised Mr Symons to deal on her behalf with owners of racehorses, and prospective purchases of interests in racehorses and training matters

Specific issues concerning creditworthiness
The evidence of Mr Symons and Ms Laxon
Mr Symons’ evidence

The plaintiffs and Mr Fielding submit that Mr Symons gave false evidence on a number of occasions in this proceeding.

I accept the plaintiffs’ and Mr Fielding’s criticisms of Mr Symons as a witness. In my view Mr Symons’ evidence should not be accepted when contradicted by evidence on the same matter given by Mr Butler, Mrs Butler or Mr Fielding, each of whom I consider to have been truthful and reliable witnesses.

Specifically, I accept as instances in which Mr Symons’ evidence was either false or inaccurate and unreliable, each of the passages of Mr Symons’ evidence which the plaintiffs highlighted as set out below:

(a) Mr Symons accepted JSL’s amended April 2013 pleading as being correct on his instructions, but then admitted that he never saw the Admiral’s Lady invoices;[8]
[8]T914.28-T915.21; T917.4.

(b) Mr Symons falsely denied holding Mr Butler out as representing JSL;[9]
[9]T921.4-30; CB2491E.

(c) Mr Symons admitted that he did not ever disclose problems with paying for horses #21 & 23 however falsely asserted that the Butlers knew horses had not been paid for;[10]
[10]T923-T926.

(d) Mr Symons falsely swore that in early January 2010 not much was owing in relation to horse #23 when in fact $61,000 was still owed;[11]
[11]T927-T929; CB2561.

(e) Mr Symons admitted that the only reason he did not pay the sum owing to Magic Millions was because he could not do so, contrary to his alleged “practice” in relation to when the vendors of horses were paid, namely when they were ready to trial and race;[12]
[12]T936.10.

(f) Mr Symons gave evidence of having a second conversations with Mr Butler about the $50,000 loan, although this conversation was not mentioned in his earlier affidavit of 3.11.2011;[13]
[13]T943.21-30.

(g) Mr Symons incorrectly and without a proper basis suggested that his former solicitors had responded to a demand of 10 June 2011 from Stynes Dixon, solicitors for the plaintiffs;[14]
[14]T945.3-16.

(h) Mr Symons inaccurately denied ever referring to Ready to Run Sales, which is contradicted by his affidavit of 3.11.2011;[15]
[15]T948.

(i) Mr Symons falsely stated that nothing special turned on the account being styled as “ready to run” and in substance said that every JSL account was so styled;[16]
[16]T950-T951.

(j) Mr Symons falsely stated that the only special feature of the “Ready to Run” accounts was the fact of three parties as owners and to contra the JSL fees;[17]
[17]T950-T954.

(k) Mr Symons retracted the false denial that he never discussed Ready to Run Sales;[18]
[18]T955-T956.

(l) Mr Symons falsely stated that the Ready to Run Sales reference in the JSL accounts was Ms Laxon’s idea;[19]
[19]T956.23-28.

(m) Mr Symons falsely denies seeing exhibit “FB-3”;[20]
[20]T957-T958; T961; T1037.

(n) Mr Symons falsely swore that the Ready to Run arrangement was because in 2009 Mr Butler told him that he did not have the money required to pay his share of training fees;[21]
[21]T965-T966.

(o) Mr Symons initially falsely denied he was present at a Racing Stewards’ interview;[22]
[22]T976.20-23.

(p) Mr Symons falsely stated an accounting was given for non-payment of #21, 25, 27 and 29 after the demand of 28.6.2011;[23]
[23]T990.20-T991.2.

(q) Mr Symons falsely sought to place the dispute with the Butlers as far back as 2010, to the time of the God Jul dinner at Florentino’s Restaurant;[24]
[24]T970-972; T996-997.

(r) Mr Symons admitted that when he spoke to the Racing Victoria Stewards he knew full well that the Butlers could not have seen the altered documents relating the horse God Jul;[25]

(s) Mr Symons falsely denied ignoring Habersberger J injunction to stop training;[26]

(t) Mr Symons falsely denied being outside of Inglis and Magic Millions’ trading terms by May 2011.[27]

[25]T1005.

[26]T1010.27; T1014-T1016.

[27]T1042.29.

In my view Mr Symons also gave false evidence when he asserted that the plaintiffs paid $50,000 (which the plaintiffs say was a loan) for horse #21 and 23, and that that sum was credited by JSL to horse #23. JSL’s own documents did not support this version of events.[28]
[28]CB2560.

Neither do I accept Mr Symons related evidence that the Butlers were given an option to have the $50,000 advance applied to purchase an interest in either horses #21 or 23, but the Butlers did not take up this option.

Mr Symons swore by his affidavit of 3 November 2011[29] that the Ready to Run horses were ready to run in 2011. However the JSL parties later admitted that the same horses were not ready to run at the date of issue of these proceedings.[30]
[29]CB432.
[30]CB759A.

Mr Symons also stated emphatically that in about March 2009 he had not ever used the phrase “ready to run sales”. I consider this evidence by Mr Symons also to be false. This conclusion is supported by JSL’s email of 27 March 2009[31] and the diametrically contradictory evidence of Mr Butler and Mr Fielding.
[31]CB324.

My above evaluation of Mr Symons’ lack of creditworthiness and reliability as a witness is fortified by what I considered to be an evasive demeanour adopted by Mr Symons in relation to much of his evidence given under cross-examination. I also consider that on occasions Mr Symons’ evidence was obfuscated and contrived.

Ms Laxon’s evidence

For the reasons which follow I reject Ms Laxon’s evidence on matters of controversy in all instances where it is in conflict with the evidence of Mr Butler, Mrs Butler or Mr Fielding.

For the following reasons I also consider that the JSL records produced by Ms Laxon are inherently unreliable and not to be relied upon as a correct and faithful record of the matters they purport to record.

I accept that some material records of JSL relating to issues in this proceeding were deliberately falsified, as detailed below.

Further, I am satisfied that Ms Laxon altered JSL’s documentary records in an effort to improve JSL’s case in these proceedings.

I am satisfied that the following are instances which severely impugn Ms Laxon’s credibility and provide a proper basis upon which to regard the evidence and records produced by her as untruthful, inaccurate, and unreliable:

(i)Ms Laxon’s false entries in the JSL “Horse History” records in relation to the horse Acclaim;[32]
(ii)Ms Laxon’s attempt to procure Ms Carol Wood, an employee of the first defendant, to give false evidence to assist JSL in pending litigation relating to a Springbank account.[33] Remarkably this serious allegation, put squarely by counsel for the plaintiffs to Ms Laxon, was not challenged in the cross-examination of Ms Wood, or denied by Ms Laxon in her evidence, or addressed in Ms Laxon’s re-examination or addressed in the JSL parties’ Closing Submissions;
(iii)Ms Laxon’s affidavit of 3 November 2011 swore in relation to the “Ready to Run Horses” that she had stated to Mrs Butler that certain horses purchased in 2009 could go to the ready to run sales as an option if they did not show any real ability.[34] Under cross-examination Ms Laxon strenuously stated that it was Mrs Butler who had made the above statement to her;
(iv)Ms Laxon’s affidavit of 3 November 2011 swore that she was not the owner or Manager of horse #28.[35] Ms Laxon also stated that the JSL share in that horse had been sold to another, who had not been registered as Owner, because the Butlers had not signed the required papers. However Exhibit “2” in these proceedings reflected Ms Laxon as Manager of horse #28, via documents prepared by Ms Laxon herself;
(v)Ms Laxon’s instruction to Ms Wood, an employee of the first defendant, to wrongly alter racehorse registration papers to displace Mr Butler as Owner1/Manager to give the JSL parties control of horses #13, 23 and 24;[36] and
(vi)Ms Laxon’s evidence that she did not know the meaning of the word “kickback”, and not being able to recall ever hearing the word used.[37]

[32]CB3481A- D and CB3478-3481.

[33]T444.1-T445.3.

[34]CB485 [5].

[35]CB486 [13].

[36]T437-439.

[37]T1690-1691.

Further, the JSL defendants’ expressly concede that in relation to the facts at issue in this proceeding Ms Laxon has “an inadequate and imperfect memory”.[38] Relevant to this concession, Ms Laxon was re-examined about an earlier head knock and the effect it had on her memory.[39] In closing oral submissions[40] the JSL parties submitted that little weight could be placed on Ms Laxon’s evidence in relation to matters depending on memory. The JSL parties concede in substance that, unless corroborated, Ms Laxon’s evidence is unreliable.
[38]JSL defendants’ Closing Submissions [61].
[39]T1739.
[40]T1772.6-11.

The evidence of Ms Carol Wood – past employee of JSL
Instruction to JSL employee to alter documents relating to horse registration applications: horses #13, 23 and 24

I set out below important passages of the evidence of Ms Carol Wood in relation to Ms Laxon’s conduct relied on above:[41]
[41]T437–439.

The Sheila you referred to, is that Ms Laxon? — — — Yes.

If the witness please be given volume 3 of the court book. If you could please turn to p.1090 you'll find black, bold print numbers at the bottom right hand corner as you hold the document? — — — 1090 was it?

1090. That is a horse registration application paper in respect of horse 13, Prince of Darkness? — — — Yes.

Were you instructed by anyone at the JSL office to make any alterations to this particular document? — — — Yes I was.

Who instructed you to make alterations? — — — Sheila Laxon.

The document is dated 30 June 2010. Can you recall the approximately date when you were given the instructions by Ms Laxon to alter the document? — — — Approximately date.

Can you recall which year? — — — Sorry, I'm just trying to think. It would have been approximately March 2011.

As well as you can recollect, what did Ms Laxon tell you to do with this document? — — — To change ownership from - for Frank Butler and John Symons or Sheila Laxon, I can't remember which one.

Did Ms Laxon say anything else about that instruction? — — — About changing it?

Yes? — — — No, just that I was to swap owners.

You will see at the top of 1090 it appears that managing owner 1 has been whited out and the number 1 has been changed to a 5? — — — Yes, that's correct.

Did you do that on Ms Laxon's instruction? — — — Yes I did.

Close that volume up please. If the witness could please see volume 4. Court book 1589, that’s a horse registration application document in respect of the horse now known as God Jewel, horse 23 in this case. That was a document signed by Mr Butler on or about 11 December 2009? — — — Yes.

Were you instructed by anyone at the JSL office to do anything in respect of this document at any time? — — — Yes I was.
Who gave you instructions as to this document? — — — Sheila Laxon.
Can you recollect when she gave you that instruction? — — — It was the same time as the last one.
In about March 2011? — — — That’s correct.
As well as you can recollect please tell His Honour what Ms Laxon told you to do in respect of the document? — — — To switch the manager owner to owner 5, which I believe for this horse was John Symons.
If you turn to p.1586. Do you recognise the handwriting at the very top of the page, managing owner? — — — Yes.
Whose handwriting is that? — — — That’s mine.
Did you alter that number to 1? — — — I did.
Going back to 1589. Did you similarly go through a process of whiting out managing owner 1 on that document and changing the 1 to a 5? — — — Yes I did.
Did Ms Laxon give you any reason for that instruction? — — — So that they could have control of the managing owner, they needed control.
If you could please turn to the same volume, p.1648 and that’s a document concerning the horse registration application for horse 24 in this case, the unnamed colt by Schnitzel out of Light Sweeper. Were you instructed by Ms Laxon to make changes to this document? — — — Yes, I was.
Are they similar to the changes that you were instructed to make in respect of the other two documents? — — — Yes, they were.
On what approximate date did Ms Laxon give you that instruction? — — — Approximately May of the same year.
May 2011? — — — Yes.
If you go to 1644 are those similar changes you made to Mr Symons’ registration document? — — — Yes.
Is the handwriting at the top of that page yours? — — — Yes, it is.
Did Ms Laxon give you any reason for that instruction? — — — The same, that they needed to have the managing owner to have the control.

The above evidence, was not sought to be addressed in cross-examination, nor in Ms Laxon’s re-examination nor in JSL’s Closing Submissions.

In my view Ms Laxon’s direction to Ms Wood to alter significant racehorse registration papers establishes that Ms Laxon is a person, at least, willing to manipulate important records to advance the JSL parties’ perceived interests.

Instruction to JSL employee to produce a false letter for use in proceedings concerning Springbank

Ms Wood also gave evidence in relation to a dispute in relation to a JSL - Springbank agistment account:[42]
[42]T440.29-31, T441 and T444-445.

MR ROBINS: If you could turn to the next page please, Ms Wood, page 6 of 7. Do you recognise the handwriting in the Part A section? — — — Again, that looks like mine Ms Wood’s evidence:
The handwriting in the Part D section? — — — That also looks like mine.
Did you affix your handwriting to that document pursuant to any instruction from someone at JSL? — — — Well, did I write this? Yes.
Who gave you that instruction? — — — Well, Sheila.
You told His Honour that you left the employment of JSL Racing on 20 February 2012? — — — Yes, that’s correct.
Do you recollect what date you gave notice? — — — 30 January 2012.
30 January 2012. What occasioned you to give notice to JSL? — — — I was asked by Sheila to type a letter and send to Guthrie with my name, which would have perjured, and attend court for 30 January for an occasion, and I didn’t want to perjure myself.
At that date did you understand that JSL was in litigation? — — — Yes, I did.
With someone over agistment fees? — — — Yes, I did.
Who was that? — — — Springbank.
You declined to send the document you were asked to prepare? — — — I did decline.

At T 444-445 Ms Wood stated:

You say you resigned in relation to being asked to assert things contrary to your knowledge in relation to a Magistrate’s Court proceeding? — — — That’s correct.
What was it that you were asked to assert falsely? — — — I was asked to write a letter to Mr Guthrie saying that we had not received invoices from Springbank, we hadn’t sighted them. I had.
Was that not sighting invoices in a given time frame? — — — Any invoices.

FIRST, SECOND & THIRD DEFENDANTS’ – SCHEDULE C

[FIRST, SECOND AND THIRD DEFENDANTS’ SCHEDULE B – FIRST, SECOND AND THIRD DEFENDANTS’ SECOND FURTHER AMENDED DEFENCE TO THE PLAINTIFFS’ CLAIM AND SECOND FURTHER AMENDED COUNTERCLAIM 10/4/13]

No	*Name*	*Amount owing Butler*		*Amount owing Fielding*
*Training*	*Agistment*	*Training*	*Agistment*
1	Exceed U	$9517.73	$568.48	$10371.42	$568.48
2	Beltonic
3	Rock to Riches	$9379.54	$3514.34	$7291.19	$2510.26
4	Omitted
5	Laudit	$4983.61	$812.24	$19,883.78	$1624.48
6	Burning Skies	$3643.48	$2214.52
7	Ready to Rule	$263.70	$1049.31	8
8	Crafty Lady	$329.73	$6482.76
9	Pincent	$14,699.60	$409.75
10	Artistic Glory	$1024.47	$711.72	$3871.80	$716.78
11	Overtly	$7019.22	$782.98	$7566.12	$782.98
12	River of Dreams	$7464.64	$1209.62
13	Prince of Darkness	$11349.36	$171.05	$12093.00	$171.05
14	Undoubtedly Home	$13,325.24	$4,555.42
15	Ice Diva	$17,294.98	$5,733.27
16	Eclipsable	$5,623.96	$6,852.51
17	Asti Spumanti	$17,431.06	$6,234.97
18	Star of Elves	$12,194.71	$2,854.46
19	Giello	$12,353.68	$2,905.29
20	French Royale	$12,341.95	$3,193.20
21	Redoutes Choice/Anigma	$5,537.57	$2125.64	$4,773.84	$1966.40
22	O’dehere Me	$9,624.57	$2461.56	$9,476.84	$2461.56
23	God Jul	$13,136.70	$761.43	$10,060.31	$507.62
24	Snitzel/Light Sweeper	$8,470.79	$2969.67	$6,696.95	$2969.67
25	Snitzel/Shinebridge	$7,331.72	$5,188.92	$7,213.46	$5188.92
26	General Offer
27	Flying Spur/Irish Truce	$5,081.64	$4377.45	$5,884.46	$4331.15
28	Café Noir	$11,867.41	$3890.04	$13,524.90	$3890.04
29	Ne Coupez Pas/Up Over Girl	$5,478.31	$2981.31	$3,036.87	$1788.80
30	Darci Brahma/Giovanna	$914.31	$690.50	$1,795.71	$1004.35
31	Snip Espirit	$10,834.60
32	Whenwegoineast	$7,473.37	$784.30
33	Rosa Delago	$9,202.10
34	Acclaim	$7.846.16	$6654.89
35	Zupaone/Vain Shopper	$1,643.64	$759.00
36	Days Fly By	$1,040.52
37	Testa Rosa/Wooden Hut	$18,780.65	$10,893.30
38	Bel Sprit/Acclaim	$11,435.74	$3555.59
39	Fields of Snow	$7,732.86	$698.50
40	Hussallet	$905.64
41	Roxit	$2,451.63
42	Sheila’s Star	$949.14	$1,909.52
43	Zupaone/Acclaim	$2,905.95	$1193.20
44	Dash for Cash/Latest Love	$5,788.34	$2,265
45	Milakai Zupaone/Milakai Yearling	$6,720.32 $1,980.20	$5692.46 $720.72
46	Mystic Jewel	$5,748.30
47	Ne Coupez Pas/NES¹	$2,516.78	$200.64
48	Nediym’s Angel	$2,032.89	$133.76
49	Royal Academy/Gretchen (Royal Mephisto)	$5,414.55	$438.93
50	Magic Red	$4,559,40
51 52	Al Maher/St Music Flying Sheila	$8,645.51 $89.85	$379.50
*Total owing*	*$216,593.13*	*$32,417.08*	*$302,168.57*	*$68,276.47*

SCHEDULE D

[FOURTH DEFENDANT’S SCHEDULE A – FOURTH DEFENDANT’S SECOND FURTHER AMENDED STATEMENT OF CLAIM AGAINST FIRST, SECOND AND THIRD DEFENDANTS – 22/5/13]

No. Horse’s name Fielding share Manager Still at JSL Share sold

1. Exceed Us 20% F Butler Yes No Yes

2. Beltonic Nil n/a n/a n/a

3. Rock to Riches 25% F Butler Yes No

4. [omitted]

5. Laudit 40% S Laxon Yes No

6. Burning Skies 20% F Butler Yes No

7. Ready to Rule 20% F Butler No No Yes

8. Crafty Lady 25% F Butler No No

9. Pincent Nil n/a n/a n/a

10. Artistic Glory 20% F Butler No Yes

11. Overtly 20% F Butler Yes No

12. River of Dreams 33.33% F Butler No Yes

13. Prince of Darkness 25% J Symons Yes No

14. Unnamed, Undoubtedly – Homeland Sheila 33.33% No Yes

15. Ice Diva 33.33% F Butler No Yes

16. Eclipsable 33.33% F Butler No Yes

17. Asti Spumanti 33.33% F Butler No Yes

18. Star of Elves 33.33% F Butler No Yes

19. Giello 33.33% F Butler No Yes

20. French Royale 33.33% F Butler No Yes

21. Unnamed, Redoute’s Choice – Anigma 20% F Butler Yes No

22. O’dehere Me 25% F Butler Yes No

23. God Jul 20% J Symons Yes No

24. Unnamed, Snitzel – Light Sweeper 30% Yes No

25. Unnamed, Snitzel – Shine Bridge 40% Yes No

26. General Offer 25% F Butler ~~Yes~~ No No

27. Unnamed, Flying Spur – Irish Truce 30% Yes No

28. Café Noir 40% S Laxon Yes No

29. Unnamed, Ne Coupez Pas – Up Over Girl 15% Yes No

30. Unnamed, Darci Brahma – Giovanna 40% No No

31. Snip Esprit 50% M Snowden Yes Yes

32. Whenwegoineast 90% G Fielding No Yes

33. Rosa Delago 50% G Fielding No Yes

34. Acclaim Nil n/a n/a n/a

35. Unnamed, Zupaone – Vain Shopper 100% ~~Yes~~ No No Yes

36. Days Fly By 20% No Yes

37. Unnamed, Testa Rossa-Wooden Hut Nil ~~n/a~~ Yes n/a

38. Unnamed, Bel Esprit-Acclaim 50% Yes No

39. Fields of Snow 50% M Snowden Yes Yes

40. Hussallet 10% F Butler No No

41. Roxit 50% F Butler No No

42. Sheila’s Star 15% E Butler No No

43. Unnamed, Zupaone-Acclaim 50% Yes No

44. Unnamed, Dash for Cash-Latest Love Nil ~~n/a~~ No n/a

45. Milakai
Unnamed, Zupaone-Milikai 40%
45% R & H Dowsett Yes
Yes No
No

46. Mystic Jewel 20% S Laxon No Yes

47. Unnamed, Ne Coupez Pas-North East Sheila 30% ~~Yes~~ No No

48. Nediym’s Angel 20% J Symons No Yes

49. ~~Unnamed~~ Royal Mephisto (Royal Academy-Gretchin) 33.33% Yes No Yes

50. Magic Red 20% R & H Dowsett No Yes

51. Unnamed, Al Maher-Street Music 50% Yes No

52. Flying Sheila 10% No No

SCHEDULE E

FOURTH DEFENDANT’S RESPONSE TO THE COUNTERCLAIM OF 1^ST TO 3^RD DEFENDANTS
[FOURTH DEFENDANT – SUBMISSIONS DATED 25/5/13 (Attachment)]

No. Horse’s name Fielding share
Amount admitted

(excl. interest)

$

Amount in dispute

(excl. interest)

$

1. Exceed Us 20% 8963.95 ---

2. Beltonic Nil n/a n/a

3. Rock to Riches 25% 7333.41 ---

4. [omitted]

5. Laudit 40% 17,974.97

6. Burning Skies 20% 3790.90

7. Ready to Rule 20% 776.06

8. Crafty Lady 25% 4816.63

9. Pincent Nil n/a n/a

10. Artistic Glory 20% 2916.56 ---

11. Overtly 20% 7707.95 ---

12. River of Dreams 33.33% --- 5604.40^*

13. Prince of Darkness 25% 14,326.54 ---

14. Unnamed, Undoubtedly – Homeland Sheila 33.33% --- 3457.46^*

15. Ice Diva 33.33% --- 4324.32^*`

16. Eclipsable 33.33% --- 5152.61^*

17. Asti Spumanti 33.33% --- 4707.12^*

18. Star of Elves 33.33% --- 2199.28^*

19. Giello 33.33% --- 2239.60^*

20. French Royale 33.33% --- 2463.64^*

21. Unnamed, Redoute’s Choice – Anigma 20% --- 5103.42^*

22. O’dehere Me 25% 8700.52 ---

23. God Jul 20% 11,768.04 ---

24. Unnamed, Snitzel – Light Sweeper 30% 6709.94 ---

25. Unnamed, Snitzel – Shine Bridge 40% --- 8003.84^*

26. General Offer 25% n/a n/a

27. Unnamed, Flying Spur – Irish Truce^* 30% --- 7659.50

28. Café Noir 40% 12,696.25 ---

29. Unnamed, Ne Coupez Pas – Up Over Girl 15% --- 3237.78^*

30. Unnamed, Darci Brahma – Giovanna 40% 1350.19 ---

31. Snip Esprit 50% 7989.96 ---

32. Whenwegoineast 90% 5566.74 ---

33. Rosa Delago 50% 6912.68 ---

34. Acclaim Nil (50% alleged) --- 9402.17^*

35. Unnamed, Zupaone – Vain Shopper 100% 278.30 ---

36. Days Fly By 20% 773.12 ---

37. Unnamed, Testa Rossa – Wooden Hut Nil (100% alleged) --- 20,749.80

38. Unnamed, Bel Esprit – Acclaim 50% 12,367.41 ---

39. Fields of Snow 50% 5814.48 ---

40. Hussallet 10% 672.89 ---

41. Roxit 50% 1821.60 ---

42. Sheila’s Star 15% 1406.76 ---

43. Unnamed, Zupaone – Acclaim 50% 5222.70 ---

44. Unnamed, Dash for Cash – Latest Love Nil (100% alleged) --- 4393.07

45. Milakai Unnamed, Zupaone – Milikai
40%

45%

7879.66

3968.18

---

---

46. Mystic Jewel 20% 4367.27 ---

47. Unnamed, Ne Coupez Pas – North East Sheila 30% 1870.01 ---

48. Nediym’s Angel 20% 1494.05 ---

49. Royal Mephisto (Royal Academy – Gretchin) 33.33% 4178.19 ---

50. Magic Red 20% 3412.09 ---

51. Unnamed, Al Maher – Street Music 50% --- 10,881.96^*

52. Flying Sheila 10% 66.76 ---

TOTAL 185,894.73 99,579.97
^*Fielding also has claims for the refund of moneys paid for training fees and other expenses for these horses as set out in his statement of claim.

SCHEDULE F

AGREED CHRONOLOGY

*Date*	*Document/Event*	*Admitted Document*	CB
-	Inglis Conditions of Sale	1982-85
-	Magic Millions Conditions of Sale	1985A – 1985Z
-	Rules of Racing	1986-2068
-	Australian Trainers Association Terms	2069
27.5.06	Receipt for purchase of Admiral’s Lady for $20,000	2491C
25.6.07	Horse #2 acquired by Symons at Inglis sales	A	795
28.8.07	Receipt for $10,000 due on Admiral’s Lady	2491D
4.3.08	Horse #1 acquired at Inglis Melbourne sales	A	760
26.3.08	Horse #3 acquired at Qld sales	A	807
9.5.08	Letter Laxon to the Stewards authorising F Butler to represent her and Symons in their absence	2491E
29.5.08	Letter to Stewards from Laxon that Butler representing JSL at 3 meetings	2941E
8.1.09	Horse #21 “acquired” at MM Gold Coast sales– unpaid for as at issue &still unregistered	A	1514
9.1.09	Horse #7 acquired at MM Gold Coast sales	A	913
9.1.09	Horse #23 “acquired” at MM Gold Coast sales– (registered c.May, 2011)	A (acquisition)	304
27.1.09	Horse #9 acquired in NZ	A	960
27.1.09	Horse #13 acquired in NZ	A	1091
9.2.09	Horse #10 acquired at Inglis Sydney sales	A	992
9.2.09	Horse #11 acquired at Inglis Sydney sales	A	1021
21.1.09	Horse #22 acquired in NZ	A	1542
3&4.3.09	Horses #12,17,18,19 &20 acquired at Melbourne Inglis sales	A	1284
10.3.09	Horses #14, 15 & 16 acquired at Adelaide MM sales	A	1134
?.3.09	Meeting in Chinatown to discuss ready to run with Fielding
21.3.09	Email from SL asking if FB wants to be manager of #7	2389
27.3.09	Emails & invoices from JSL concerning Ready to Run Horses	A	324-6
March 09- Dec 2010	JSL invoices concerning: Horse #21 – no reference to any injury at breakers Horse #23 – no reference to any injury at breakers	1515-1527 1593-1600H
7.4.09	Horse #6 acquired at Inglis Sydney Easter sales	A	899
9.4.09	Horse #8 acquired at MM sales	A	934
6.7.09	JSL invoices reporting that Horse #21 “has broken in nicely”	1520-1
July 09	JSL invoices #9 Pincent – no reference to any training credit	991A
9.12.09	Email Magic Millions to JSL: $110,055 then owing on Horse #21 and $61,644 owing on Horse #23 (before interest)	2561-2
early.1.10	Meeting at JSL to discuss $50,000 payment to stop repossession of #21 & #23
7.1. 10	Horse #24 acquired at MM Gold Coast sales	A	1652
7.1.10	Horse #27 “acquired” at MM Gold Coast sales– unpaid for as at issue & still unregistered	A	1754
12.1.10	Butlers’ cheque for $50,000 to Magic Millions for Symons account [Magic Millions receipt requested the following year]	339-340, 2606
14.1. 10	Magic Millions Catalogue for repossession sale - #21 & 23	1528-9
14.1. 10	Butlers letter to Magic Millions enclosing $50,000 “to be debited from John Symons account...”	2469
15.1.10	JSL pays $50,000 to Magic Millions allocated to Horse #23	2471
15.1.10	Horse #26 acquired at MM Gold Coast Sales	A	1739
15.1.2010	Magic Millions invoice to JSL re Horse #27 = 30 day terms	2439
24.1.10	Horse #28 acquired at Sydney Classic Sales	A	1791
3.3.10	Horse #25 “acquired” at Melbourne Inglis sales– unpaid for as at issue & still unregistered	1698
4.3.10	Horse #29 “acquired” at Melbourne Inglis sales – unpaid for as at issue &still unregistered	A	1877
24.3.10	Horse #30 acquired in NZ	A	1878
27.3.10	JSL invoices referring to “Agistment Act” and “Arrival Terms & Conditions”	2323-8
5.4.10	JSL invoices referring to “Agistment Act” and “Arrival Terms & Conditions”	2329-2358
15.4.2010	Magic Millions invoice to JSL re Horse #27 = 30 day terms	2490
16.5.10	April 2010 JSL invoices emailed to Butlers	A	328-336
May 10	F Butler & Symons discuss RtR invoices, Symons confirms that they do not need to be paid
29.6.10	Email Magic Millions to JSL reconciling Horses #23 & 27: only $56,199 paid on Horse #27	2573
13.9.2010	Email from Inglis to Laxon & Symons chasing payment	2435-6
30.9.2010	Email from Inglis to Laxon & Symons chasing payment	2435
1.10.10	Butlers acquire 10% in Horse #5	A	848
11.10.10	Email JSL to Butlers concerning Horse #11	1023
12.11.10	Inglis email to JSL demanding payment	2431
7.12.10	#23 God Jul naming dinner – no reference to Manager issue	2491W
15.1.11	Butler receive receipt from MM for $50,000	A	2470
Jan 11	F Butler & Symons discuss RtR horses, Symons says that they should sell one to Laurie Laxon in Singapore
17.3.11	JSL lodges materially altered registration papers for Horse #28 despite 80% interest by Butlers and Mr Fielding	1790, 1790A-F
2.4.11	JSL email re scoping Horse #21	1531
13-14.4.11	Emails between Butlers & JSL re Queensland relocation	A	856-860
15.4.11	Frank Butler ceases work at JSL
19.4.11	Maxine Brain Report on Horse #1	A	761-2
20.4.11	Email Butlers to JSL re Horse #9	A	967
20 & 23.4.11	Emails Butlers & JSL re horse #9
23.4.11	Email Laxon to undisclosed reporting on Horse #1	763
26.4.11	Email Butlers to JSL re removing Horses to Queensland	A	968
26.4.11	Email from JSL re Horse #24	A	1653
2.5.11	Emails between Inglis and JSL chasing payment	2424-2426
6 & 10.5.11	Emails between Inglis and JSL chasing payment	2422-2423
10-17.5.11	Emails between Butlers & JSL re x-rays for Horse #7	915-917
12.5.2011	JSL lodges materially altered registration papers for Horse #13	1086-90, 1092-3
17.5.11	Email from JSL re Horse #28	1798
19-26.5.11	Emails between Butlers & JSL re Manager of Horse #24	1654-7
20.5.11	JSL lodges materially altered registration papers for Horse #23	1580-92
10.6.11	Butlers demand repayment of Loan & completion of outstanding payment of horses	2099
10-13.6.11	Emails between Butlers & JSL concerning Horse #8	941-2
15.6.11	Email between Butlers and R Curr re Manager of Horse #28	1799
15.6.11	Alleged letter from JSL to Butlers [not put to Butlers]	2501
18.6.11	JSL email to the Butlers of the June 2011 statement, contain no reference to the ATA Terms	2490A-2490F
28.6.11	Stop training instruction	2486
July-Oct 11	Symons and JSL continue training despite “stop training” instruction	2318A-M
30.6.11	Invoice John Walker to Butler, reference to Horses #1, 8 & 10	764
1.7.11	Maxine Brain report on Horses, includes #25	2384-6
4.7.11	Email Fielding to JSL instructing that Horses #5 stay at JSL	861
6.7.11	Horse #3 last trained	841
6.7.11	Proceedings issued
12.7.11	JSL email to owners as to stop training instruction and the Butlers’ threatened in junction	2386A
15.7.11	JSL statement of Account to Butlers - $33,686.92 outstanding, $0 for more than 2 months	2070-1
25.7.11	Email Butler to Claire Bird re Horse #26	1740
4.8.11	Email from Butler to Croxford re #21 on JSL website	1541A
27.7.11	Letter Ryan Carlisle Thomas recording agreement re Crafty Lady and Sheila’s Star as to collection & release of papers	2090-1
29.7.11	Letter Ryan Carlisle Thomas reneging on agreement re Crafty Lady and Sheila’s Star as to collection & release of papers	2092
5.9.11	JSL email to the Butlers of the August 2011 invoices, contains first reference to the ATA Terms at 2489Q	2489A-2489Q
12.9.11	Emails between Inglis and JSL chasing payment	2418-2421
28.9.11	Butlers increase interest in Horse#10 to 40%	996
2 & 3.11.11	Emails between Inglis and JSL chasing payment	2417
4.11.11	Orders by Habersberger J	128-139
10.11.11	Guthrie informs Symons of Orders	Tba
Nov 11 to Aug 12	Symons and JSL deliberately continue training despite “stop training” injunction	2318N-2318AL
25.11.11	Letter Stynes Dixon to RVL confirming Horse #26 is not to race	1749
1.12.11	Letter from Seymour Equine Clinic - Horse #2 injured	796
1.12.11	Inglis Statement gives final notice before it issues proceedings	2535
7.12.11	Fax from A Bibb re Horse #1	773
16.12.11	Horse #2 Sold $55,000 (less commission)	806
16.12.11	Horse #9 Sold $55,000 (less commission)	991
16.12.11	Horse #12 Sold $2,200 (less commission)	1084
16.12.11	Horse #14 Sold $900 (less commission)	1148
16.12.11	Horse #15 Sold $2,600 (less commission)	1195
16.12.11	Horse #16 Sold $20,000 (less commission)	1246
16.12.11	Horse #17 Sold $5,500 (less commission)	1296
16.12.11	Horse #18 Sold $800 (less commission)	1383
16.12.11	Horse #19 Sold $600 (less commission)	1397
16.12.11	Horse #20 Sold $1,800 (less commission)	1448
8.3.12	JSL invoices referring to ATA Terms	2359-2382
16-18.5.12	Communications re attempted Manager change in Horse #11	1036-8
4-5.6.2012	Emails between RVL & Butlers re altered Registration Papers	1104-5
5.6.2012	Symons and Laxon mislead Stewards in inquiry as to manager registration papers for #23 God’s Jul	2491I-U
06.2012	Horse #26 removed from JSL by agreement, Harvey pays JSL	1753
5.7.12	RVL registers change of Manager to Horse #11	2589
5.7.12	Stewards reprimand Symons and Laxon for unauthorised changes to manager registration papers for #23 God’s Jul	2491V
16.8.12	Horse #4 sold $24,000 less commission	2941F
May 12	A Bibb appointed manager of Horse #1
5.9.12	Butler interest in Horse #1 sold to A Bibb	776
5.9.12	#4 Demandahere sold by Butlers at Inglis sales	2491F-2491H
18.4.13	Letter Nathan Kuperholz explaining error in 2.11.11 affidavit	2320-22

SCHEDULE G

SCHEDULE – JSL CLAIM PARTICULARS AS PROVIDED ON 29^THApril, 2013

BUTLER F & K – Amount owing as at 31 March 2013

No.	Name	Owing 31/7/11	Incurred since	Total (No interest)
1	Exceed us	1000.48	7346.62	8347.10
2	Beltonic	(2,070.00)	.00	(2,070.00)
3	Rock to Riches	4000.19	5015.08	9015.27
4	Omitted Demandahere & foal 25%	.00	.00	.00
5	Laudit	279.70	4962.32	5242.02
6	Burning Skies	(11,195.25)	-	(11,195.25)
7	Ready to Rule	1520.21	(1335.33)	184.88
8	Crafty Lady	493.20	(241.46)	251.74
9	Pincent	8461.45	5658.17	14,119.62
10	Artistic Glory	1389.17	(593.69)	795.48
11	Overtly	1563.80	5739.89	7303.69
12	River of Dreams	(5631.83)	-	(5,631.83)
13	Prince of Darkness	2529.04	11,482.20	14,011.24
14	Undoubtedly Home	8792.78	1146.54	9939.32
15	Ice Diva	11,743.31	1126.38	12,869.69
16	Eclipsable	3120.93	1177.95	4298.88
17	Asti Spumanti	11,695.79	1286.61	12,982.40
18	Star of Elves	7994.97	1106.24	9101.21
19	Giello	8074.88	1146.56	9221.44
20	French Royale	5955.23	1294.33	9249.56
21	Redoutes Choice/Anigma	562.76	5126.87	5689.63
22	O’dehere Me	4626.68	4185.37	8812.05
23	God Jul	2642.10	13,565.19	16,207.29
24	Snitzel/Light Sweeper	3768.90	4256.01	8024.91
25	Snitzel/Shinebridge	1589.57	6502.76	8092.33
26	General Offer	1853.91	-	1853.91
27	Flying Spur/Irish Truce	863.98	4901.49	5765.47
28	Cafe Noir	4732.22	6736.53	11,468.75
29	Ne Coupez Pas/Up Over Girl	1713.63	3992.22	5705.85
30	Darci Brahma/Giovanna	553.73	136.77	690.50

Less $3,000 for missing invoices for veterinary, dentist and chiropractor.

Total $177,347.15

SCHEDULE H

AGREED LIST OF ISSUES

Was there a joint venture agreement between:
(a)the parties as alleged in paragraphs 5 to 11 of the plaintiffs’ amended statement of claim;
(b)the first to third defendants and the fourth defendant as alleged in paragraphs 5 to 8 of the fourth defendant’s amended statement of claim.
If yes to paragraph 1(a) and/or (b), what were the terms of the joint venture agreement/s?

2A.If no to paragraph 1(a) and/or (b), what were the terms of the agreement/s as between the parties as to:
(a)the purchase of interests by the plaintiffs and/or the fourth defendant in racehorses from the first to third defendants, and in particular, was there an express or implied term that:
(i)the first to third defendants were obliged to provide good title for such racehorses to the plaintiffs and/or the fourth defendant within a reasonable time after purchase;
(ii)the first to third defendants were obliged to obtain good title for such racehorses with reasonable expedition so that such racehorses could commence preparation and training to race as two or three year olds;
(iii)the first plaintiff would be registered as Owner 1/Manager of such racehorses subject to any contrary majority resolution by the owners of such racehorses;

(b)the training of racehorses on behalf of the plaintiffs and/or the fourth defendant with the first to third defendants, and in particular was there an express or implied term that:
(i)the first to third defendants would provide the plaintiffs and/or the fourth defendant with all material information that they reasonably required as owners of racehorses, including any difficulty or delay in the first to third defendants completing their own purchase of such racehorses;
(ii)the first to third defendants had any entitlement to claim interest on unpaid amounts;
(iii)the first to third defendants had any contractual lien over the racehorses in respect of unpaid amounts.

If yes to paragraph 1, have the first to third defendants breached the joint venture agreement by:
(a)failing to account to the plaintiffs and/or the fourth defendant, or otherwise properly inform them, of the other owners or syndicate members in each of the said horses and their respective percentage interest in the horses numbered #21, 25, 27, 29 and 30;
(b)wrongfully and without prior authority of the plaintiffs, materially altered the registration papers provided to them by the plaintiffs so as to procure that Laxon or Symons, and not the first plaintiff, was registered as Manager of each of the horses numbered #13, 23, 24 and 28;
(c)failing to account to the plaintiffs and/or the fourth defendant, or otherwise inform them, the payment of the initial acquisition costs of the horses numbered #21, 25, 27 & 29;
(d)failing to account to the plaintiffs and/or the fourth defendant, or otherwise inform them, of the full training costs associated with each of the said horses;
(e)failing to procure that the balance of the ownership interest in the horses numbered #21, 25, 27 & 29, beyond the percentage acquired by the plaintiffs and/or the fourth defendant, was acquired by a syndicate consisting of either the JSL defendants and/or by third persons procured by the JSL defendants and/or failing to ensure that each of the said horses were fully paid for so that race trialling and racing could start at the earliest reasonable date in respect of each such horse;
(f)failing to pay Magic Millions in full for horses numbered 21 and 27 at all;
(g)failing to pay for horses numbered 25, 29 and 51 in full within a reasonable time;
(h)allowing horse numbered 51 to be physically held by Springbank Horse Farm due to unpaid agistment fees from 2010 to February 2012 which precluded any proper management of the horse’s career during its two and three year-old years;
(i)not acting in accordance with the instructions of the first plaintiff as Manager and/or acting unilaterally in respect of the said horses without first consulting the first plaintiff as Manager in:
(i)transferring horses interstate without the prior knowledge and consent of the plaintiffs;
(ii)racing horses without the prior knowledge and consent of the plaintiffs;
(iii)relocating horses from the JSL defendants' training facility for agistrnent or training within Victoria without the prior knowledge and consent of the plaintiffs; and
(iv)failing and refusing to bring horse #30 to Victoria from New Zealand?
If yes to paragraph 3, what is the loss suffered by the plaintiffs and the fourth defendant?

4A.If no to paragraph 1, are the first to third defendants in breach of any of the terms considered in paragraph 2A above?
4B.Was the conduct by the first to third defendants in materially altering the registration papers completed by the first plaintiff, without his prior consent, in respect of:
(a)Horse #13;
(b)Horse #23;
(c)Horse #24; or
(d)Horse #28,

in breach of any agreement as between the plaintiffs and the first to third defendants or otherwise contrary to any obligation owed by them at law?
4C.If yes to paragraph 4A or 4B, what is the loss suffered by the plaintiffs and the fourth defendant?
4D.As between the fourth defendant and the first to third defendants, was there an agreement to sell interests in horses numbered 21, 25, 27, 29 and 51 as contemplated by s.6 of the Goods Act 1958 (Vic)?
4E.Alternatively, was there a contract of sale between the fourth defendant and the first to third defendants for interests in horses numbered 21, 25, 27, 29 and 51 as contemplated by s.10 of the Goods Act 1958 (Vic)?
4F.Are the first to third defendants in breach of the agreements to sell and/or the contracts of sale for interests in horses numbered 21, 25, 27, 29 and 51?

Did the first to third defendants make untrue representations to the plaintiffs and the fourth defendant as to:
(a)the acquisition of the horses #21, 25, 27 & 29 and whether such horses had been, or would be, paid for in full by the first to third defendants or by a syndicate arranged by first to third defendants; and/or
(b)the acquisition of the horses #12 and 14-20 as yearlings suitable to purchase and prepare for sale at the Ready to Run Sales in October or November, 2009 and/or the JSL defendants were able to, and would in fact, train each of the said horses to the standard required to sell at the Ready to Run Sales in October or November, 2009?
If yes to paragraph 5, did the first to third defendants thereby contravene the Trade Practices Act 1974 ("the TPA"), the Fair Trading Act 1999 ("the FTA") and/or the Competition and Consumer Act 2010 ("the CCA")?
If yes to paragraph 6, what is the loss suffered by the plaintiffs and the fourth defendant recoverable under the TPA, the FTA and/or the CCA?
Are the first to third defendants indebted to the plaintiffs for a loan of $50,000 made to them on 2^nd January, 2010 to complete the purchase of horses #23 and 21?

8A.What agreement, if any, was made between the plaintiffs and any of the first to third defendants at the time that the first plaintiff agreed to contribute a further $50,000 towards the monies then owing to Magic Millions in respect to the horses # 21 and 23?

What were the terms of the agreement made in or about March, 2009 between the parties as to the "Ready to Run" horses #12 and 14-20?
Did the first to third defendants breach the agreement made in or about March, 2009 as to the "Ready to Run" horses by:
(i)failing to train the "Ready to Run" horses up to the stage where each of the said horses were able to be raced or sold as ‘ready-to-run’ horses prior to reaching three years of age; and/or
(ii)claiming training and other costs associated with the "Ready to Run" horses?

10A.Did the first to third defendants represent to the plaintiffs and fourth defendant that
(a)each of the “Ready to Run” horses were yearlings suitable to purchase and prepare for sale at the Ready to Run sales in October or November 2009; and
(b)they would train each of the horses to the standard to sell at the Ready to Run sales in October or November 2009 unless they and the plaintiffs and fourth defendant agreed to keep a “good one” (the Ready to Run Representations).

10B.Were the Ready to Run Representations in paragraph 10A above false or untrue?

If yes to paragraph 10, did the plaintiffs or the fourth defendant suffer any loss by reason of the breaches of the "Ready to Run" agreement?

11A.If yes to 10A and 10B, did the first to third defendants thereby contravene the TPA, the FTA or the CCA?

Are the plaintiffs and the fourth defendant indebted to the first to third defendants for any training or other costs associated with the "Ready to Run" horses #12 and 14-20?

Did the first to third defendants move horses #8, 9, 16, 22, 24 and 28, out of the State of Victoria and to the State of Queensland without the prior knowledge and permission of the plaintiffs?
Was the Training Agreements between the plaintiffs and the first to third defendants as alleged in paragraphs 35 and 36 of the Amended Statement of Claim?
If yes to paragraph 14, did the first to third defendants breach the Training Agreements as alleged in paragraph 37 of the Amended Statement of Claim?
If yes to paragraph 15, what is the plaintiffs' loss and damage?
On any, and if so what occasions prior to April, 2011 did the first to third defendants provide a copy of their standard terms to:
(a)the plaintiffs;
(b)the fourth defendant?
If yes to paragraph 17, was the Training Agreements between the plaintiffs and the first to third defendants constituted by, or did it incorporate, the standard terms of the first to third defendants?

18A.Were the Australian Trainers Association terms ever incorporated into the Training Agreementss between the plaintiffs and/or the fourth defendant with the first to third defendants, and if so, from what date?

Are the plaintiffs indebted to the first to third defendants for any training or other costs associated with the horses #1 to 30, and if so, in what sum?
Is the fourth defendant indebted to the first to third defendants for any training or other costs associated with the horses #1 to 52, and if so, in what sum?
Are the first to third defendants entitled to training fees and associated disbursements in respect of horses of which the first plaintiff was, our should have been, manager and incurred after the stop training instruction on 28 June 2011?
Are the first to third defendants entitled to training fees and associated disbursements in respect of horses of which the first plaintiff was the manager and incurred after the injunction granted 4 November 2011?
Are the plaintiffs or the fourth defendant liable to the first to third defendants for agistment and associated charges other than training fees in relation to any of the horses.
If yes to paragraph 21, in what amount.
Is or was the fourth defendant an owner, lessee or otherwise liable for the upkeep of horse #34 (Acclaim)?
Is the fourth defendant the owner of horse #37 (unnamed, Testa Rossa – Wooden Hut)?
Was the fourth defendant the owner of horse #44 (unnamed, Dash For Cash – Latest Love)?

*No.*	*Horse’s name*	*Fielding share*	*Manager*	*Still at JSL*	*Share sold*
1.	Exceed Us	20%	F Butler	Yes	No Yes
2.	Beltonic	Nil	n/a	n/a	n/a
3.	Rock to Riches	25%	F Butler	Yes	No
4.	[omitted]
5.	Laudit	40%	S Laxon	Yes	No
6.	Burning Skies	20%	F Butler	Yes	No
7.	Ready to Rule	20%	F Butler	No	No Yes
8.	Crafty Lady	25%	F Butler	No	No
9.	Pincent	Nil	n/a	n/a	n/a
10.	Artistic Glory	20%	F Butler	No	Yes
11.	Overtly	20%	F Butler	Yes	No
12.	River of Dreams	33.33%	F Butler	No	Yes
13.	Prince of Darkness	25%	J Symons	Yes	No
14.	Unnamed, Undoubtedly – Homeland Sheila	33.33%	No	Yes
15.	Ice Diva	33.33%	F Butler	No	Yes
16.	Eclipsable	33.33%	F Butler	No	Yes
17.	Asti Spumanti	33.33%	F Butler	No	Yes
18.	Star of Elves	33.33%	F Butler	No	Yes
19.	Giello	33.33%	F Butler	No	Yes
20.	French Royale	33.33%	F Butler	No	Yes
21.	Unnamed, Redoute’s Choice – Anigma	20%	F Butler	Yes	No
22.	O’dehere Me	25%	F Butler	Yes	No
23.	God Jul	20%	J Symons	Yes	No
24.	Unnamed, Snitzel – Light Sweeper	30%	Yes	No
25.	Unnamed, Snitzel – Shine Bridge	40%	Yes	No
26.	General Offer	25%	F Butler	~~Yes~~ No	No
27.	Unnamed, Flying Spur – Irish Truce	30%	Yes	No
28.	Café Noir	40%	S Laxon	Yes	No
29.	Unnamed, Ne Coupez Pas – Up Over Girl	15%	Yes	No
30.	Unnamed, Darci Brahma – Giovanna	40%	No	No
31.	Snip Esprit	50%	M Snowden	Yes	Yes
32.	Whenwegoineast	90%	G Fielding	No	Yes
33.	Rosa Delago	50%	G Fielding	No	Yes
34.	Acclaim	Nil	n/a	n/a	n/a
35.	Unnamed, Zupaone – Vain Shopper	100%	~~Yes~~ No	No Yes
36.	Days Fly By	20%	No	Yes
37.	Unnamed, Testa Rossa-Wooden Hut	Nil	~~n/a~~ Yes	n/a
38.	Unnamed, Bel Esprit-Acclaim	50%	Yes	No
39.	Fields of Snow	50%	M Snowden	Yes	Yes
40.	Hussallet	10%	F Butler	No	No
41.	Roxit	50%	F Butler	No	No
42.	Sheila’s Star	15%	E Butler	No	No
43.	Unnamed, Zupaone-Acclaim	50%	Yes	No
44.	Unnamed, Dash for Cash-Latest Love	Nil	~~n/a~~ No	n/a
45.	Milakai Unnamed, Zupaone-Milikai	40% 45%	R & H Dowsett	Yes Yes	No No
46.	Mystic Jewel	20%	S Laxon	No	Yes
47.	Unnamed, Ne Coupez Pas-North East Sheila	30%	~~Yes~~ No	No
48.	Nediym’s Angel	20%	J Symons	No	Yes
49.	~~Unnamed~~ Royal Mephisto (Royal Academy-Gretchin)	33.33%	Yes	No Yes
50.	Magic Red	20%	R & H Dowsett	No	Yes
51.	Unnamed, Al Maher-Street Music	50%	Yes	No
52.	Flying Sheila	10%	No	No

No.	Horse’s name	Fielding share	Amount admitted (excl. interest) $	Amount in dispute (excl. interest) $
1.	Exceed Us	20%	8963.95	---
2.	Beltonic	Nil	n/a	n/a
3.	Rock to Riches	25%	7333.41	---
4.	[omitted]
5.	Laudit	40%	17,974.97
6.	Burning Skies	20%	3790.90
7.	Ready to Rule	20%	776.06
8.	Crafty Lady	25%	4816.63
9.	Pincent	Nil	n/a	n/a
10.	Artistic Glory	20%	2916.56	---
11.	Overtly	20%	7707.95	---
12.	River of Dreams	33.33%	---	5604.40^*
13.	Prince of Darkness	25%	14,326.54	---
14.	Unnamed, Undoubtedly – Homeland Sheila	33.33%	---	3457.46^*
15.	Ice Diva	33.33%	---	4324.32^*`
16.	Eclipsable	33.33%	---	5152.61^*
17.	Asti Spumanti	33.33%	---	4707.12^*
18.	Star of Elves	33.33%	---	2199.28^*
19.	Giello	33.33%	---	2239.60^*
20.	French Royale	33.33%	---	2463.64^*
21.	Unnamed, Redoute’s Choice – Anigma	20%	---	5103.42^*
22.	O’dehere Me	25%	8700.52	---
23.	God Jul	20%	11,768.04	---
24.	Unnamed, Snitzel – Light Sweeper	30%	6709.94	---
25.	Unnamed, Snitzel – Shine Bridge	40%	---	8003.84^*
26.	General Offer	25%	n/a	n/a
27.	Unnamed, Flying Spur – Irish Truce^*	30%	---	7659.50
28.	Café Noir	40%	12,696.25	---
29.	Unnamed, Ne Coupez Pas – Up Over Girl	15%	---	3237.78^*
30.	Unnamed, Darci Brahma – Giovanna	40%	1350.19	---
31.	Snip Esprit	50%	7989.96	---
32.	Whenwegoineast	90%	5566.74	---
33.	Rosa Delago	50%	6912.68	---
34.	Acclaim	Nil (50% alleged)	---	9402.17^*
35.	Unnamed, Zupaone – Vain Shopper	100%	278.30	---
36.	Days Fly By	20%	773.12	---
37.	Unnamed, Testa Rossa – Wooden Hut	Nil (100% alleged)	---	20,749.80
38.	Unnamed, Bel Esprit – Acclaim	50%	12,367.41	---
39.	Fields of Snow	50%	5814.48	---
40.	Hussallet	10%	672.89	---
41.	Roxit	50%	1821.60	---
42.	Sheila’s Star	15%	1406.76	---
43.	Unnamed, Zupaone – Acclaim	50%	5222.70	---
44.	Unnamed, Dash for Cash – Latest Love	Nil (100% alleged)	---	4393.07
45.	Milakai Unnamed, Zupaone – Milikai	40% 45%	7879.66 3968.18	--- ---
46.	Mystic Jewel	20%	4367.27	---
47.	Unnamed, Ne Coupez Pas – North East Sheila	30%	1870.01	---
48.	Nediym’s Angel	20%	1494.05	---
49.	Royal Mephisto (Royal Academy – Gretchin)	33.33%	4178.19	---
50.	Magic Red	20%	3412.09	---
51.	Unnamed, Al Maher – Street Music	50%	---	10,881.96^*
52.	Flying Sheila	10%	66.76	---
TOTAL	185,894.73	99,579.97

[2014] VSC 509

10 October 2014