Elliott v Landmark - [2008] SADC 10

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ELLIOTT v LANDMARK
[2008] SADC 10
Judgment of His Honour Judge Boylan
19 February 2008
TRADE AND COMMERCE - TRADE PRACTICES AND RELATED MATTERS
Misleading and deceptive conduct. Sale of cattle - false misrepresentation as to weight and provenance. Measure of damages. Difficulty of assessment of damages. Necessity to assess damages where loss proved.
Trade Practices Act 1974 s.52; Fair Trading Act 1987; Misrepresentation Act 1972, referred to.
Henville v Walker (2001) 206 CLR 459, considered.

ELLIOTT v LANDMARK
[2008] SADC 10

Andrew Elliott owns farming land near Calendale. He earns his income by buying cattle, fattening them on his land and selling them. Landmark is a corporation which carries on business as a stock and station agent. In 2003 Brendan Fitzgerald was Landmark’s livestock manager at its Naracoorte office. Mr Fitzgerald was Mr Elliott’s stock agent.
In November 2003, Elliott bought 281 heifers. He claims that, when he bought them, he relied on representations made to him by Fitzgerald; that those representations were false; that the cattle did not thrive as they should have had they been as represented; and, therefore, that he lost money. He now claims damages from Landmark.
Landmark’s answer to the claim is that Fitzgerald did not make the representations alleged and, further, that the cattle failed to thrive on account of Elliott’s poor husbandry.
I accept Elliott’s claim and reject Landmark’s answer. In my view, Fitzgerald made representations which were false; Elliott suffered on account of them and is entitled to damages. I now set out my reasons for reaching that conclusion.
Elliott said that the representations were made in a telephone conversation between him and Fitzgerald on the 24^th of November 2003. The two men gave very different accounts of that conversation. My findings about what was said are crucial. I have accepted Elliott’s version. I cannot adequately explain my reasons for doing so without first saying something about Elliott’s and Fitzgerald’s backgrounds and about the history of the business dealings between them including the sale of these cattle.
Elliott is nearly 60. Although he has owned the Lucindale property since only 2002, he has worked in the farming industry for almost forty years. He is an experienced farmer and he is experienced with cattle.
In 1975, Elliott was injured in a motor vehicle accident. He suffered brain damage which adversely affects his memory but in an unusual way. He finds concentrating on some technical tasks difficult. For example, he cannot apply instructions which he has read in an instruction manual to the operation of the relevant machine. He cannot, by reading the instructions, reset his fax machine after a power failure. Someone must do that for him. He told me that, despite such difficulties with concentration, he does not have difficulty remembering the details of conversations. I accept that. Moreover, I did not notice anything about his answers or his demeanour while giving evidence which suggested short term memory problems other than those of the type I have described. I have not overlooked his statement in cross-examination when he was recalled to the witness box: “I don’t remember what I said two minutes ago”. Elliott was angry when he made that statement. It was not an answer which he had thought about. Nevertheless, I have been wary about accepting his evidence and have looked for independent support. He was irascible and, on occasions, rude but I found him honest and generally reliable. Landmark’s counsel, Dr Bleby, submitted that Elliott had an obvious tendency to exaggerate. There is force in that submission to this extent only: Elliott was impetuous in his initial reaction to propositions put to him. Once he had understood a point being made, he reflected upon it and, in my view, gave measured and careful answers.
Another consequence of his injuries is directly relevant. Elliott is a recluse. He avoids public occasions, including cattle sales. He prefers to buy his cattle - whether dollars per head or cents per kilogram - over the telephone, insisting upon a description of them before making a decision. That that is his method of purchase is clear from his earlier dealings with Fitzgerald.
Fitzgerald is 44. He has worked with cattle all his life and has extensive experience in drafting, assessing and marketing them. He began acting as Elliott’s stock agent in about early 2003 and, during that year, procured cattle for Elliott on a number of occasions. The basis on which Elliott bought those cattle is important and I deal with it now as a preliminary point.
In January 2003, Elliott bought 142 steers from a Mr Buckner. The private sale agreement, exhibit P6, shows that the steers weighed a total of 39,640 kilograms and that they were sold at 115 cents per kilogram. This was not a telephone transaction. Elliott went with Fitzgerald to inspect the steers. There is no dispute that the basis of the purchase was cents per kilogram.
On the 28^th April 2003, Elliott bought 76 heifers from Evelyn Downs Pastoral Company Pty Ltd. He bought them over the telephone, after discussing the purchase with Fitzgerald. Again, I am satisfied that he negotiated the purchase of these heifers on a cents per kilogram basis. It is true that the tax invoice which records the sale shows them as having been sold at $334.64 per head. But I accept Elliott’s evidence that he did not agree to buy them on a per head basis. He bought them on a cents per kilogram basis, he thinks at $1.30 per kilogram. I accept his evidence that an amount of $334.64 per head is an odd amount, to say the least. While Landmark drew its invoice to reflect a price per head, I accept that the contract was negotiated on a cents per kilogram basis. I also accept Elliott’s evidence that he received tax invoices some days after having negotiated a deal and that he was not concerned with the way in which Landmark expressed the price of cattle. Further, I note that Fitzgerald agreed in cross examination that, in respect of these cattle, he had quoted a price per kilogram and that $334.64 is not an amount that he would have quoted per head. Accordingly, I am satisfied that in the case of the Evelyn Downs cattle, Elliott purchased them on a cents per kilogram basis.
On the 28^th May 2003, Elliott bought 20 heifers from Childerly Park. The private sale agreement, exhibit P10, records the purchase price as having been $375 per head. I find that this purchase is an example of an exception to Elliott’s normal practice. These cattle were purchased on a price per head basis. Elliott emphasised that this was the smallest trade he had ever done. He bought the cattle sight unseen, by description. In evidence, he told me that he could not remember how he and Fitzgerald had arrived at the price. It was his evidence, however, that price per kilogram was discussed but he did not remember how the final figure of $375 per head was arrived at.
The next purchase was of 44 mixed sexed weaners, bought on the 13^th August 2003, from AC and CL Begg. Again, the sale agreement, exhibit P12, shows the price as $437 per head. It was Elliott’s evidence that Fitzgerald quoted both a weight and the price, either $1.80 or $1.85. Elliott again insisted that he bought on a cents per kilogram basis and I accept that evidence. Indeed, Fitzgerald agreed in his evidence that he quoted for these cattle on a cents per kilogram basis. Fitzgerald also agreed that it was not Landmark’s practice to send copies of private sale agreements to any of its clients. Elliott never received them.
I find that, with the sole exception of the Childerly Park cattle, Elliott had always purchased his stock through Fitzgerald on a cents per kilogram basis. In cross examination, Fitzgerald eventually agreed (at page 226) that that was the case.
I turn now to the sale of the 281 heifers.
Elliott bought the heifers on the 24^th of November 2003 from Mr Charles Goode, a Western Victorian grazier. There is no dispute about the provenance of the cattle. They had been bred by H.J. Broad Pty Ltd on its cattle stations on the Birdsville Track. They were transferred to Old Canowie, an H.J. Broad property near Jamestown, where they were drafted before their sale to Goode in June 2003. Fitzgerald knew where the cattle had come from when he negotiated their sale to Elliott. He knew that they had come down from the Birdsville Track some six months beforehand and he also knew of Broad’s practice of putting together “mobs” of cattle from its various properties. In particular, Fitzgerald knew that the cattle were not locally bred.
Goode was leasing land near Apsley in western Victoria. He kept the cattle there during the winter and spring of 2003. By the end of November his pasture was beginning to brown off and it was time to sell the cattle. Goode spoke to his stock agent, Richard Jennings, also an employee of Landmark at its Naracoorte office. Jennings and Goode were hopeful that the cattle would be sold to a Mr Dubois. Dubois’s stock agent was Simon Mulraney, another Landmark employee.
At the same time Elliott had good pasture available and Fitzgerald was on the lookout for cattle to graze it, about 300 head. He and Elliott had discussed a move to local cattle. The Begg cattle were local cattle and they had done well.
On the morning of the 24^th of November 2003, Goode mustered the cattle for inspection by Mulraney on behalf on Dubois. Goode wanted to weigh the cattle and had tried to do so using portable scales but, owing to the soft surface in his yards he could not obtain reliable results. He did not manage to weigh any of the cattle and I find that none of them were weighed at his property. Goode, however, estimated their weight . At the time of the sale of the cattle to him Landmark had quoted an average weight of 180 kilograms. He thought that they had put on, on average, about 120 kilograms while he had owned them. He added that to the 180 kilograms, giving an average of 300 kilograms. His evidence of his estimate of weight together with his evidence about how he fixed his asking price is important because it shows that a figure of 300 kilograms was being discussed during negotiations. When deciding what was an appropriate price to ask from Dubois, and even though he intended selling the cattle on a price per head basis, Goode had arrived at his price by reference to 300 kg. Further, he said that $1.60 per kilogram was the going rate for cattle of that type at the time. He settled on an asking price of $475.00 per head.
Jennings was at the Apsley property when Mulraney inspected the cattle for Dubois. Dubois decided not to proceed and Mulraney left. Jennings remained. He told Goode that he would “try another line” and rang Fitzgerald. Goode said that Jennings went to his car and came back and said that Fitzgerald would come out to inspect the cattle. Fitzgerald arrived about half an hour later. Goode and Fitzgerald gave different accounts of what then occurred.
Although Goode could not be sure, it was his recollection that Jennings was still there when Fitzgerald arrived. Goode said he met Fitzgerald in the drive. They then inspected the cattle. Goode had already instructed Jennings that he wanted $475 per head. He let Jennings negotiate with Fitzgerald. Jennings spoke to Fitzgerald before telling Goode that Fitzgerald was offering $450. Goode told Jennings to renegotiate. Jennings went back to Fitzgerald and then came back to Goode saying Fitzgerald’s price remained $450. Goode accepted it. The effect of Goode’s evidence clearly is that Jennings was present. Importantly, Goode’s evidence was that the agreement to sell the cattle was made before Fitzgerald left his property.
Fitzgerald said that his first involvement with the sale of the heifers was when he received a phone call from Jennings. When he took the call, Fitzgerald was in his office at Naracoorte. Jennings told Fitzgerald that Goode had about 280 heifers for sale at Apsley, that Goode was asking $450 and that a small sample had been weighed, giving an average weight of about 300 kilograms. Fitzgerald went to Apsley. He said that Jennings was not there when he arrived. Once there, he inspected the cattle with Goode and confirmed with Goode that the price was $450. The weight of the cattle was not discussed with Goode, only with Jennings on the telephone. Fitzgerald said that he then got into his car and drove back to Naracoorte. On the way, he rang Elliott. He could not ring him from Apsley because there was no mobile telephone reception there.
I mention one matter where, at first sight, there may appear to be a difficulty with Goode’s evidence. Goode said (at page 276) that he had justified his asking price by reference to his estimate of 300 kilograms. He went on to say “But Brendan said “no”, he didn’t think they were quite as heavy as that, and that $450 was his price”. It is not clear from Goode’s evidence whether he was suggesting that Fitzgerald told him that the cattle were not as heavy as 300 kilograms or whether that was relayed to him by Jennings. I find that it was relayed to him by Jennings. That interpretation fits with Goode’s evidence that he left the negotiation with Fitzgerald up to Jennings and it also fits with Fitzgerald’s evidence that he discussed the weight of the cattle only with Jennings.
I prefer Goode’s account of what occurred at Apsley. It makes sense that Jennings would have remained at the property. He must have been anxious to sell the cattle on Goode’s behalf and his remaining there accords with Goode’s evidence that he left the negotiation up to his agent, Jennings. Further, Fitzgerald’s memory that he rang Elliott about Elliott’s buying the cattle as he drove back to Naracoorte cannot be right. If it were, then Fitzgerald had concluded the deal with Goode on Elliott’s behalf without having spoken to Elliott first. Further, Fitzgerald’s evidence about lack of mobile reception does not sit with Goode’s evidence that all Landmark vehicles are fitted with antennae to give them mobile telephone reception. The evidence about the cars being fitted with such antennae was left in an unsatisfactory state. Goode, of course, gave evidence after Fitzgerald. Goode was not challenged on the evidence and there was no application to recall Fitzgerald. I note that Jennings, a witness plainly in Landmark’s camp, was not called and there was no explanation for his not being called. I conclude that his evidence would not have assisted Landmark’s case.
There is no doubt that, at about lunch time, on the 24^th of November 2003 Fitzgerald spoke to Elliott. I go now to that telephone conversation. Elliott’s account is that Fitzgerald rang and said “We’ve got heifers. They are a local breeder’s cattle. They are Herefords with a few black Baldies. They are of a one mark line. The price is $1.50 per kilogram and the average weight of the heifers is 300 kilograms”. Fitzgerald did not tell Elliott that the cattle belonged to Goode. Fitzgerald said that the cattle were “fresh off the grass but they have deducted 5% for curfew”. Elliott thought that $1.50 was too much for what he described as “store cattle” and he and Fitzgerald discussed his only having received $1.52 for fat cattle which he had just sold. Elliott then asked if the cattle had been vaccinated. Upon his asking that question, he heard Fitzgerald call out “Charlie” before Fitzgerald came back to the telephone and said “It’s all just been done, drenched and vaccinated”. Elliott then said “Put the trucks over a weigh bridge” to which Fitzgerald replied “Its not necessary; its just been done”. At the end of the conversation Elliott agreed to purchase the cattle and there was some discussion about trucking arrangements. In particular, Elliott told Fitzgerald that he wanted the cattle delivered in B-Doubles as that was cheaper. Fitzgerald replied that B-Doubles could not fit into Elliott’s yards and that he would get semi-trailers to transport the cattle and that he would “fix it with Rusty”. Rusty is Rusty Crane, a local truck driver well known to everybody involved in the case.
Elliott went on to say that he did not ever see any B-Doubles at his property when the cattle were delivered. He said that he saw only one truck and that he spoke to the driver of the truck the following morning. The driver said he had one more load to collect. Elliott said that the first time he saw the cattle was the day after the telephone conversation during which he had bought them. Fitzgerald said otherwise. He said that Elliott rang him on the evening of 24^th November and said he was happy with the cattle. I find that there was no such call.
Elliott’s evidence agrees generally with Goode’s. Goode said that one truck came in the late afternoon or evening and another one at night. A third truck removed the rest of the cattle in the morning. On that account, Elliott would not have been able to see any of the cattle until the following morning. Fitzgerald’s assertion that Elliott rang him the previous evening is another indication of Fitzgerald’s unreliability.
I turn to Fitzgerald’s account of his conversation with Elliott at about lunch time on 24 November. He said he told Elliott that the cattle were of a “one mark line, that they comprised Herefords with the odd Black Baldie and a few odd Roans”, that the cattle were being sold at $450 per head and that a small sample had been weighed and a rough estimate was 300 kilograms. Fitzgerald said that Elliott said, in response to mention of $450 per head, “about 150 cents”. To that, Fitzgerald replied “maybe, Andrew, but they are being sold on a per head basis at $450 each”. Elliott said “Can we get a truck weighed?” to which Fitzgerald replied “By the time the first truck is loaded the scales will be shut”. Elliott then said “Send them on”.
Fitzgerald said that Elliott also asked who owned the cattle and that he, Fitzgerald, answered “Charlie Goode”. When Elliott asked “Who’s Charlie Goode?” Fitzgerald said “He’s a Hereford stud breeder”.
As to Fitzgerald’s account, Elliott denied that Fitzgerald said he had inspected the cattle. He denied that Fitzgerald said that a small portion of them had been weighed. According to Elliott there was no mention of “a small proportion”. Elliott denied Fitzgerald’s assertion that he had told Elliott the cattle ranged from 240 to 330 kilograms or that he gave an estimate of 300 kilograms. Elliott also denied that Fitzgerald quoted $450 per head. He said that the figure of $450 was never mentioned. Elliott also denied that he asked who owned the cattle. He was told that they were a local breeder’s cattle. Elliott also denied that Fitzgerald said that the weigh-bridge at Naracoorte would be shut.
As I have said, I accept Elliott’s account of the conversation. In the past, he had bought on a cents per kilogram basis and always wanted to know the weight of the cattle. I see no reason why he should change that practice on this occasion. He was buying by description and, to him, the average weight was vital. Further, from his previous dealings with Elliott, Fitzgerald knew that he wanted to know the weight of cattle purchased. As far as the relevant representation goes, it does not much matter whether the price was quoted on a cents per kilogram or a dollar per head basis. What is important is that a representation was made that the average weight of the cattle was 300 kilograms. Further, Fitzgerald is an unreliable witness. His account of where he was at the time of the phone call is most unsatisfactory. He is either confused or has reconstructed some of the events concerning the telephone conversation. There is another indicator which suggests that Elliott’s version is the right one. The effect of Fitzgerald’s account is that Elliott, having asked for a truck to be put over a weigh bridge, and having been told that the weigh bridge would be shut, simply acquiesced. That version does not sit with Elliott’s insistence upon knowing weight of cattle. I reject Fitzgerald’s account of the telephone call.

I find that Fitzgerald told Elliott that the cattle weighed, on average, 300 kilograms; that they were locally bred and of a “one mark line” and that they comprised principally Herefords with a few black baldies.
The cattle were trucked to Elliott’s property, some that evening and some the following morning. Goode, Elliott and Fitzgerald did not agree about the trucking and delivery arrangements. That does not matter. Nor does it matter that Fitzgerald said he had spoken to Rusty Crane before he spoke to Elliott. It was reasonable for Fitzgerald to inquire about the availability of trucks before speaking to Elliott, especially if the cattle were already mustered and Goode was anxious for them to go.
I move to Christmas 2003. By then, Elliott had had the cattle for some four weeks. He had found them very difficult to handle and had become suspicious about them. He was brooding about them. On the 23^rd of December, he weighed some of the heifers using scales he had owned for some time but had not been able to use until new yards had been completed. To use his words, he “could not find 300 kilos anywhere”. He was angry. He rang the local veterinary surgeons who put him in touch with Dr Colin Trengove, an animal nutrition expert who attended at Elliott’s property on Christmas Eve. He inspected the pasture and made a video recording of what he saw. Elliott also rang Fitzgerald and complained about the weight of the cattle. Fitzgerald went out to the property although there is a dispute about the date on which he did so. I shall return to that. Once there, Fitzgerald and Elliott weighed enough of the cattle to calculate an average weight. It was finally agreed in evidence that the average weight was 272 kilograms. According to Elliott, Fitzgerald said that someone had lied to him on the 24^th of November about the average weight of the cattle. He did not suggest that Mulraney had done so, saying that Mulraney only pushed the cattle up the race. An unnamed person did the weighing and it was that person who had told Fitzgerald that the average weight was 300 kilograms. Elliott also said that Fitzgerald told him he had had no sleep the night before worrying about the cattle; that Landmark would truck the cattle away and refund the purchase and trucking costs. Elliott pointed out that the cattle had eaten out some hundreds of acres of feed. Fitzgerald replied that Landmark would make up for that by charging less commission until it had made up the difference. Elliott’s evidence was that he felt sorry for Fitzgerald, believing that he had been deceived about the weight of the cattle. Accordingly, he decided to keep them. He continued to believe that Fitzgerald had been deceived until well into the new year when Goode rang him. It was only then that Elliott disbelieved what Fitzgerald had told him about the weight of the cattle. Elliott denied that Fitzgerald had said Landmark could buy replacement cattle for the price Elliott had paid.
Fitzgerald’s version of the conversation was different. He said that Elliott rang him before Christmas with his complaint but that, as Fitzgerald was going away for Christmas, he arranged with Elliott to visit the property about a week later, at New Year. When he attended, Fitzgerald noticed that the cattle were loose and he said that he told Elliott that Landmark would take the heifers for what Elliott had paid for them and pay Elliott agistment for the time that they had been on his land. Elliott replied that he would keep the heifers and “see where they go from here”. Elliott did not say why he would keep them.
I prefer and accept Elliott’s evidence both of the date of Fitzgerald’s visit and the of the contents of their conversation. Elliott was very angry when he could not find an average weight of 300 kilograms. It makes sense that he would want Fitzgerald to see the cattle as soon as possible and while they were already mustered in the yard. I also accept and prefer Elliott’s account of what was said. His account of Fitzgerald’s protestation that he had been deceived rings true and explains his decision to keep the cattle. That decision is otherwise unexplained. I do not accept Fitzgerald’s assertions that he offered to take the cattle, refund the purchase price and pay for agistment. Had that offer been made there is no reason why Elliott would not have accepted it immediately.
There is no dispute that Elliott kept the cattle and sold them (or nearly all of them), in three separate lots in 2004. I shall come back to that.
Before turning to the issue of Elliott’s actual loss, I deal with three important matters: the alleged “stirriness” of the cattle, the assertion that Elliott mismanaged them and the meaning of the expression “one mark line”.
It is Elliott’s case that these cattle were stirry and difficult to handle. It is also his case that they were stirry owing to their having been bred in the far north of South Australia where they had little experience of human contact. Goode, who had owned and managed the cattle for some six months said that they were nervy, although he added that they were no different from other northern cattle that he had handled. Dr Trengove saw the cattle on Christmas Eve 2003 and formed the view that they were stirry. He said that their stirriness was a little unusual as he and those with him were not invading the heifer’s “personal space”. I find that the cattle were stirry.
What was the cause of this stirriness? Again, I accept Goode’s evidence on this issue. He said that northern cattle were nervous. He was, of course, referring to cattle from the far north, on the Birdsville Track. Mr Driver, a Landmark employee who drafted these very cattle for sale to Goode had no reason to remember the temperament of these particular cattle but gave evidence that far northern cattle have a good temperament. If, by that comment, he meant that northern cattle are not stirry, I reject it and I prefer Goode’s evidence. Dr Trengove’s opinion was that the stirry nature of the cattle was associated with their northern origins owing to lack of human contact there. Dr Trengove had worked with cattle in the far north in his early years in practice. I prefer his evidence on the topic to that of Mr Culley, an expert called by the defendant, who frankly admitted that he had not had experience with cattle bred north of Hawker. I find that these cattle were stirry because they had been bred on the Birdsville Track.
Fitzgerald gave evidence that, about two weeks after the 24^th of November 2003, he went to Elliott’s property to inspect a sick steer. He attended with Ms Dycinta Schultz, a Landmark employee who was an animal health nutritionist. Fitzgerald asserted that while he and Ms Schultz were at the property, he saw Elliott shifting the heifers from one irrigation bay to another. Elliott was on a motor bike, using the horn and shouting at the cattle. Fitzgerald was concerned at that behaviour. Fitzgerald also said that he thought the heifers were trampling and dirtying the pasture in the small bays in which they were confined and that he formed the view that they should have hay as a fibre supplement. When he raised the question of hay with Elliott, Elliott replied that he did not have any. It was Landmark’s case that Fitzgerald’s observations on the day demonstrate that Elliott was a poor manager of the heifers. Landmark put that submission against the undisputed evidence that moving cattle will reduce their capacity to gain weight.
I reject the submission that Elliott was a bad manager of these cattle. As I noted earlier, Elliott is experienced with cattle. Moreover, Fitzgerald had attended at the property on a number of occasions and there was no suggestion from him, or from anybody else, that he ever noticed anything untoward in Elliott’s husbandry practices. It is also significant that Ms Schultz was not called. There is no explanation for her absence. As I said, she is a Landmark employee and, as an animal nutritionist, one would have thought she would have been in a good position to comment on the appearance of the cattle and on their management. Her evidence would not have assisted Landmark’s case. Further, Fitzgerald insisted that when he saw them, the cattle needed a fibre supplement, hay. Neither Trengove nor Culley thought so although they saw them some time later.
I turn to the meaning of “one mark line”. On the meaning of that expression, I accept Goode’s evidence. He, too, is an experienced cattleman and was effectively an independent witness. His evidence was that the expression means a line of cattle from the one calving bred by the same breeder on the same property or, at least, from the same general area. Fitzgerald did not deny that he said the cattle were of a one mark line and the precise meaning of the expression is not itself of great importance. What is important is that Fitzgerald represented that the cattle were of a one mark line at the same time as he represented that they were locally bred. In those circumstances, I find that the effect of his saying that the cattle were of a one mark line was to represent to Elliott that the cattle had been bred on a local property by a local breeder. That representation was, of course, false. Further, Fitzgerald represented the cattle as being principally Herefords with a few black baldies. It is clear from the evidence of Driver they were Hereford crosses. It is also clear that the cattle included a number of roans. Roans are shorthorn crosses. The herd, or “mob” to use the word of the various witnesses, of 281 heifers did not comprise “principally Herefords”.
I summarise my findings of fact. Fitzgerald falsely represented to Elliott that the average weight of the cattle was 300 kilograms, that they were locally bred and of a one mark line, and that they comprised principally Herefords with a few black baldies. The heifers all came from station country on the Birdsville Track, and had not been bred by Goode or, indeed, by any breeder in south east South Australia or western Victoria. The herd comprised mainly cross Herefords with some shorthorn crosses. Their temperament was stirry and that stirriness was owing to their having been bred in station country in the far north. Elliott was not a poor manager of cattle and did not contribute to the stirriness of these cattle or to their failure to thrive. They failed to thrive on account of their stirriness. Elliott relied on the representations made by Fitzgerald and, but for them, would not have bought the cattle.
Elliot claims that he has suffered loss in two ways. First, because he bought the cattle on a cents per kilogram basis and the cattle weighed less than represented, he has paid too much for them. That is, he received “short weight”. Secondly, he claims that the cattle did not gain weight as they should have, had they been as represented, owing to their provenance. As a result, he obtained a lower price when he sold them than he would have obtained had the cattle been as represented. In light of those claims, any damages award depends upon my findings about the evidence of the two experts, Dr Trengove and Mr Culley, because their evidence goes to the probable weight gain of cattle as represented and is, therefore, relevant to both aspects of Elliot’s claim.
Both Dr Trengove and Mr Culley gave evidence about the factors which affect weight gain. Trengove gave evidence that cattle as represented should have put on 1 to 1.5 kilograms per day over the whole of the period during which they were on Elliot’s property. He took into account all relevant practices, including acclimatisation. Culley predicted a lower growth rate. Culley produced a chart which shows predicted weight gain when the energy content of the pasture is known. Trengove did not contest the accuracy of that chart, but he and Culley differed on their assessments of the energy content of Mr Elliot’s pasture. On that topic, I prefer Dr Trengove’s evidence. In doing so, I make no criticism of Culley. Trengove had a decided advantage. He inspected the pasture. Culley had to rely on the video film, taken by Trengove, and on pasture databases for the general area. Culley frankly admitted that an assessment based on the video film was “inexact”. I find that the energy content of the pasture at Elliot’s property was 10.5 megajoules per kilogram.
The energy content of the pasture is not the only factor relevant to weight gain. Others include adequate water supply, the quantity of feed available, ambient temperature, and the length of acclimatisation periods. There was no dispute about the relevance of those factors. There was no suggestion that there was not an adequate water supply. There was some suggestion from the defendant, through Fitzgerald, that the quantity of feed was reduced by spoilage of the pasture by the cattle. Trengove did not agree with that suggestion. I reject it and I accept Trengove’s evidence that there was adequate feed available. I find that ambient temperature is, indeed, a significant factor in the capacity of cattle to put on weight, but I am unable to make specific findings about the actual effect of ambient temperature on these cattle while they were on Elliott’s pasture. I received a chart showing minimum and maximum air temperatures at the Naracoorte Aerodrome for December 2003 and January 2004 only. The aerodrome is some 60 kilometres from the property. It is north of it and further inland. I do not know the extent to which temperatures might differ between the aerodrome and Elliott’s property.
I heard quite a deal of evidence about acclimatisation. I shall not recount it in detail. The evidence was that the rumen function of cattle is affected by various factors. Significant ones for these particular cattle were, one, stress caused by trucking and mustering; and, two, change in diet from Goode’s pasture to Elliott’s. There is no doubt that the trucking caused stress, which would have led to an acclimatisation period during which the cattle would not eat and therefore would not gain weight. There was a dispute between the experts about the length of that period. There was no dispute that mustering of the cattle could cause stress which would, in turn, again affect weight gain. I have already noted my finding that Elliott did not cause undue stress to the cattle by mismanagement of them. Trengove gave evidence that locally bred cattle would have become acclimatised to the daily movement required by Elliott’s operation. It was his opinion that, taking all relevant factors into account, the acclimatisation period would have been about one week. Cully thought the period would have been two weeks, or up to two weeks. I prefer and I accept Trengove’s opinion. Cully’s opinion had been prepared on the basis that Goode’s pasture was completely browned off by the day of sale and that the cattle were moved from dry feed to green feed. Goode’s evidence, which I accept, was that his pasture was beginning to brown off. Cully accepted that a less extreme change in diet would shorten the acclimatisation period.
I have taken into account all of the factors to which I have referred in estimating the likely weight gain of cattle of the type Elliott thought he had bought. Accepting his evidence, I find that cattle as represented should have put on an average of 1 kilogram live weight each day between 23 November 2003 and 24 December 2003. Trengove went further, and said that they should have continued to gain weight at that rate for the whole of the time Elliott was grazing them. I accept that evidence. The cattle were on high quality pasture and would have remained on such pasture for the whole of the time they grazed on Elliott’s property. According to Culley, cattle grown on lush pasture in constant conditions gain weight at a rate of 0.7 to 1 kilogram per day. He was there referring to cattle raised in Ireland or New Zealand but he added that there were compensatory factors in Australia. He did not develop that evidence. Taking into account Culley’s evidence on that topic and the fact that these heifers would have been grazing constantly on high quality lush pasture, I find that locally bred Hereford cattle would have put on weight at the rate of 1 kilogram per day for the whole time they were on Elliott’s property.
I must also find the actual average weight of the cattle at the time of purchase. Trengove’s evidence does not help. I have accepted his evidence about the average weight gain of cattle as represented. That does not assist me to find the actual weight gain of these 281 heifers at sale. I pause to mention here that there is no suggestion in the evidence that they had lost weight. There is only one way I can make a finding about actual weight at sale: by extrapolating it from two known weights, namely the average weight of the cattle on 24 December 2004 when Elliott and Fitzgerald weighed a sample of them, and the average weight on the days of sale. The average weight of the cattle on 24 December 2003 was 272 kilograms. There is no argument about that. Eventually, nearly all of them were sold off, in three different lots.
On 19 May 2004, Elliott sold 64 head. Their average weight was 345.31 kilograms. They had, therefore, gained 73.31 kilograms between 24 December 2003 and 19 May 2004, a period of 147 days. There was during that period , on average, a daily weight gain of 0.5 kilograms.
On 9 June 2004, Elliott sold 72 head at an average weight of 327.43 kilograms. They had gained 55.43 kilograms in 168 days. The average daily gain was therefore 0.33 kilograms.
On 18 August 2004, Elliott sold 133 head at an average weight of 327.82 kilograms. They had gained 55.82 kilograms on average in 238 days, giving a daily average of 0.23 kilograms.
The average daily weight gain across the total cattle sold was 0.35 kilograms per day.
On the information I have, the best estimate I can arrive at is that during the period between 23 November 2003 and 24 December 2003, each of the heifers gained on average 0.35 kilograms per day. That means that each heifer gained 10.5 kilograms in that 30 day period. The average weight of each heifer at sale therefore was 272 less 10.5, which equals 261.5 kilograms. There was a difference between actual weight and represented weight of 38.5 kilograms per head. The total short weight was 38.5 x 281, making a total of 10,818.5 kilograms.
I have found the question of the measure of damages very difficult. Elliott has claimed damages pursuant to the Trade Practices Act 1974, the Fair Trading Act 1987, the Misrepresentation Act 1972, and in negligence at common law.
I deal first with the claim under the Trade Practices Act. The usual measure of damages would be the difference between the purchase price of the cattle and their actual value on the day of sale. At one level, Elliott’s damages are easily assessed. He paid $1.50 per kilogram at an average weight of 300 kilograms. There were 281 heifers. Therefore, he paid $126,450. He should have paid $1.50 per kilogram for an average weight of 261.5 kilograms. That is, according to the represented weight, he should have paid only $110,222.25. The difference is $16, 227.75. If his damages are assessed only at that level then he is entitled to receive that sum.
I have found the task of assessing damages for the other component of Elliott’s claim very troublesome. His claim is for damages pursuant to the Trade Practices Act, the Misrepresentation Act, the Fair Trading Act and in negligence. Only the claim pursuant to the Trade Practices Act was seriously pressed before me and I have not considered whether the measure of damages would be different had they been assessed other than pursuant to the Trade Practices Act. Given the way that I have assessed them, I think not. I note, however, that I am satisfied that the damage Mr Elliott suffered was foreseeable. I also note that he is not precluded from a claim under the Fair Trading Act by the fact that he is not a “consumer”.

The usual measure of damages for a contravention of Section 52 of the Trade Practices Act is the difference between the purchase price and the actual value of the relevant goods on the day of sale, although that is not a hard and fast rule. Courts may have to adapt the measure of damages to the circumstances of a particular case and a particular plaintiff. Nor am I bound by any analogy with the measures of damages in tort, especially deceit, or in contract. But I must not assess Elliott’s damages by calculating the difference between the actual proceeds of his sale of the cattle and the proceeds he would have received had the cattle been as represented.[1] There is my problem. I have been asked, effectively to assess damages on that basis. I will not do so. But it is plain that, owing to the false representations as to provenance, Elliott suffered loss. That loss was a direct result of the false representation. To use the wording of the Act, the loss was occasioned “by” the false representation. In those circumstances I must assess damages even though the task is difficult. It is difficult because I have no evidence from an expert about the actual value of the cattle on the day of sale. I have, therefore, assessed Elliott’s loss according to the usual measure of damages in a Trade Practices Act claim by estimating their actual value. In doing so, I have noted the evidence about the expected weight gain of the cattle as represented and the expected sale price of such cattle, but I have used that evidence only as a rough guide. It may well be that there is some speculation in my assessment but, in the circumstances of this case, that cannot be helped. Owing to both the short weight and their provenance, these cattle were worth substantially less than Elliott paid for them. Taking into account both of those factors, and taking into account the purchase price of $126,450, I assess Elliott’s damages at $55,000.
[1] See, generally Henville v Walker (2001) 206 CLR 459, especially at 501, paras. 130-132, per Mc Hugh J
There has been a submission that Elliott failed to mitigate his loss. I do not accept that submission. As I have said, I reject Fitzgerald’s assertion that he offered to buy the cattle and pay agistment. I am not satisfied that there was any failure to mitigate. There will be judgment for the plaintiff for $55,000.
I shall hear the parties as to interest and costs.