Kathryn Lyall v James Bullen

[2014] NSWCATCD 208

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Kathryn Lyall v James Bullen [2014] NSWCATCD 208
Hearing dates:	16 September 2014
Decision date:	31 October 2014
Jurisdiction:	Consumer and Commercial Division
Before:	J A Ringrose, General Member
Decision:	The respondent is to pay the applicant the sum of $210.00 immediately and such sum is to be set off against the monies payable by the applicant herein to the respondent herein in matter COM 14/24057
Catchwords:	AGRICULTURAL TENANCY – tenant’s obligations – fair compensation for any deterioration of the farm during the tenancy
Legislation Cited:	Agricultural Tenancies Act 1990 ss 3, 4, 19A and 20. Civil and Administrative Tribunal Act 2013, s41.
Texts Cited:	McGregor on Damages (15th edition
Category:	Principal judgment
Parties:	Kathryn Lyall (applicant) James Bullen (respondent)
Representation:	The parties appeared in person
File Number(s):	COM 14/31904
Publication restriction:	Nil

judgment

APPLICATION

1. By an application filed on 19 June 2014 the applicant as the occupant of a property at 622 Lambs Valley Road, Lambs Valley, brought proceedings against the respondent as a tenant share farmer claiming compensation pursuant to s 19A of the Agricultural Tenancies Act 1990 for damage to fence lines in the horse paddock near the house and a fence line near the stock yards as well as damage to a stockyard rail and a sagging fence line as a result of the installation of a ‘Queensland gate’.

2. The present application was filed following an application brought by the respondent herein seeking compensation against the applicant herein in a related matter COM 1424057.

3. Both matters were heard together and the background in relation to the tenancy has been more fully set out in the related application.

APPLICANT’S EVIDENCE

4. Ms Lyall firstly claimed compensation for the cost of repairs for;

(a)   damage to a fence line of the horse paddock near the house;

(b)   rectification of a ‘Queensland gate’ which resulted in a sagging fence line;

(c)   damage to a stockyard rail;

(d)   damage to a fence line near the stockyards;

The compensation claim for these items was based upon a quote received from TW & A Hollingshed Fencing Contractors dated 9 June 2014. It is noted that none of the repairs have yet been undertaken although the applicant also makes a claim for six hours work associated with what she described as ‘temporary fence repairs of the sagging fence line caused by the queensland gate’ and of the fence line near the stockyards’. Her claim on that basis was $106.86 calculated in accordance with the 2010 award for a farm and livestock hand.

5. Ms Lyall also sought compensation for the necessity to take paid leave to be present on 28 February 2014 and 6 March 2014 whilst Mr Bullen was removing his stock from the agistment property. There is no written agreement between the parties and it has not been alleged that Ms Lyall had a specific right to claim time off work as compensation when stock were being removed from the property.

6. Ms Lyall claimed that when stock was being brought into the property on 15 October 2013 cattle were unloaded in the stockyards and were proceeding down the access way to the lower paddock. They were being driven by the respondent and his wife with the assistance of two dogs. It is claimed that one of the steers jumped through an internal fence into the horse paddock and then jumped back through the fence to join the rest of the steers. Ms Lyall claimed that the sections of fence contained five plain wires and two electric wires which she stated were in reasonable and serviceable condition prior to the incident.

7. It is claimed further that on 22 October 2013 the respondent brought four more steers onto the agistment property and as he was moving cattle in the stockyards one of the rails in the yards gave way under his weight. She claimed that the damage has not been repaired nor has it been returned to its previous condition and she had made temporary repairs so that the rail was sitting in its proper position. Although Ms Lyall claimed that the stockyards were in a reasonable and serviceable condition at the commencement of the tenancy, neither the applicant nor the respondent have produced any record showing the condition of the property at that time.

8. A third claim relates to an incident which allegedly occurred on 28 February 2013 whilst Mr Bullen was removing his remaining cattle from the agistment paddock to the stockyards. He was again working with the assistance of dogs but one of his cattle jumped through a fence into a horse paddock and then jumped back through another fence into the laneway. Ms Lyall claims that damage was caused to one of the five plain wires in the fence as a result of that incident.

9. Ms Lyall makes other claims in relation to the conduct of Mr Bullen during the course of the tenancy including a suggestion that he may have “attempted to strike” her dog and a claim that he entered the agistment paddock without prior notice on a day when her show horses were grazing in the driveway. There is of course no obligation under the Act for a tenant to give notice of an intention to enter the property. A further claim was made on 11 February 2014 Mr Bullen entered the property without notice in a truck from which he unloaded two mares and foals. Ms Lyall contended that Mr Bullen never gave her notice that he was intending to bring horses onto the paddock at that time.

10. The final claim relates to the installation of a “Queensland gate” in order to facilitate access to the agistment paddock. Ms Lyall conceded that Mr Bullen was given permission to make up the ‘Queensland gate’ but claimed that the fence which was in a reasonable and serviceable condition prior to the installation of the gate but it now suffers from some sagging which requires rectification. Ms Lyall claimed she placed a temporary fence across the area near the ‘Queensland gate’ and sagging fence to ensure that none of her horses were injured. She claimed to have spent two hours of her time putting the temporary fence in place.

RESPONDENT’S EVIDENCE

11. Mr Bullen referred initially to the provisions of s 20 of the Agricultural Tenancies Act 1990 and claimed that the application presently made by Ms Lyall should be dismissed because it has been made later than three months after the relevant dispute or, in this case, more than 3 months after the end of the tenancy. He noted that he was never approached with a request that the fencing be repaired at the time when the first incident occurred in October 2013 and he argued that if it was only a broken or loose wire then the fence could be strained up again very quickly.

12. Mr Bullen submitted further that the applicant was only a tenant and not the property owner. He pointed out that there was no evidence of her obligations to the owners of the property who were her parents. He also argued that the fences had been used to restrain a number of her horses during an 8 month period and accordingly if there was any damage it could only be regarded as minimal.

13. In relation to the damage to the cattle yard rails Mr Bullen claimed that the rails were designed to restrain cows of up to 600kgs and bulls up to 800kgs. He submitted that an 80 kg person climbing on the rails would not be capable of breaking or splitting the rail if it was, at the time, in good and serviceable condition. He also claimed that the rails were only 6 inch by 2 inch whilst the fencing contractor had quoted for an 8 inch by 2 inch rail. Mr Bullen referred to “numerous broken or rotten rails in the yards” despite of alleged repairs by the previous tenant.”

14. In relation to the ‘Queensland gate’ Mr Bullen claimed that he walked the paddock and inspected the area with Ms Lyall. She agreed to the installation of the gate as it would save taking cattle through one of her horse paddocks and thus save her time in her shifting or controlling horses when required. Mr Bullen claimed that she was happy with the installation and never complained about any effect on the fence line. She never requested that the gate be removed.

15. Mr Bullen referred to the photographs of the fence line in the area of the gate and noted that the geometry and lack of stays had made it impossible to pull the wires up any more than hand tight as the post would be pulled sideways, thereby releasing the tension on another panel of fencing. He also noted that from the photos it was clear that the sagging posts had in fact rotted off just below ground level and the sheer weight was pulling the fence over. He pointed out that the fencing contractor’s report confirmed the replacement of broken posts which clearly were not a result of the installation of the ‘Queensland gate’.

16. Mr Bullen disputed the claim for temporary repairs and for time off work and he observed that Ms Lyall had conceded she was not experienced in fence repairs.

DECISION

17. In the first instance it has been submitted by Mr Bullen that the applicant’s claim was not lodged within three months of the end of the tenancy and accordingly the claim should be dismissed. Section 20(1) of the Act enables an owner or tenant to apply to the Tribunal for a termination of a dispute relating to a right or obligation conferred by the Act. Subsection (2) provides;-

“20(2) an application to the Tribunal must be made not later than three months after the relevant dispute or other matter arises or the end of the tenancy, whichever is the later.”

18. It is necessary however to have regard to the provisions of s 41 of the Civil and Administrative Tribunal Act 2013 which provides;-

“41 extensions of time

(1)   The Tribunal may, of its own motion or on application by any person, extend the period of time for doing of any Act under any Legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under the legislation.

(2)   Such an application may be made even though the relevant time period has expired.”

19. Schedule 4 to the Act relates to the Consumer and Commercial Division and Part 3 section 3 provides that the functions of the Tribunal in the Consumer and Commercial Division include matters relating to the Agricultural Tenancies Act 1990.

20. In this matter the application by Ms Lyall was lodged approximately three weeks after the expiration of the prescribed period. The application was lodged to be heard and determined in conjunction with an application by the tenant and neither party, on the face of it, had the benefit of legal advice. In these circumstances it is appropriate to extend the time for filing of the application up to the date when it was filed in order to ensure that all issues in dispute between the parties can be properly determined (See Di Salvo v Leung (2014) NSWCATAP 44).

21. The applicant’s claims in this matter appear to be made pursuant to s 19A of the Agricultural Tenancies Act which provides as follows;-

“19A Compensation for deterioration

(1)   It is a term of the tenancy that the tenant must pay the owner fair compensation for any deterioration of the farm during the tenancy owing to the failure of the tenant to manage the farm in accordance with good farm management or the provisions of any agreement creating the tenancy, or both.

(2)   For the purposes of determining compensation payable for deterioration of the farm, the amount of compensation is the amount representing the decrease in value of the farm as a result of the deterioration.

(3)   The compensation is payable when the deterioration is evident.”

The provisions of subsection (4) are not relevant to the present application because the parties do not appear to have an agreement which would displace any of the rights referred to above.

22. Ms Lyall has submitted a quote and makes a claim based upon the cost of making good deficiencies which she says have arisen as a result of the failure of the tenant to manage the farm in accordance with good farm management principles.

23. The measure of damages payable at the determination of a tenancy was discussed by the learned author of McGregor on damages (15th edition) in the following manner;-

“nevertheless even though the cost of reinstatement may be an available measure of damages, the normal measure remains the diminution in the value of the reversion which, it is true, will in many cases be property assessed by taking the cost of reinstatement. As Denning J. rightly said in Westminster v Swinton (1948)1KB 524

“in cases in which there are breaches of covenant to deliver up in repair, the law has always been, and still is, that there is no rigid rule that damages are the costs of reinstating the premises. It depends on the particular case [see Tito v Waddell (No.2) (1977)Ch. 106]”

24. In the present instance there is no written agreement and there is no inventory produced to show particular items associated with the property including fencing and yards which would enable their condition at the commencement of the tenancy to be ascertained. Although photographs have been produced by the applicant, these relate to conditions at the end of the tenancy and it is difficult to determine the extent to which deterioration may have occurred when the fencing was apparently quite old and requiring repair from time to time.

25. The onus of proving that loss was suffered and the amount of that loss rests with the party seeking to recover the loss [Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 128]. Generally speaking when a person sustains a loss by a breach of another, that party is, so far as money can do it, to be placed in the same situation that the party would have been had the contract been performed. Difficulty in assessing damages is not generally a bar to recovery of damages [Fink v Fink (1946) 74 CLR 127]. The general rule is however, subject to the proviso that the difficulty must not arise from the fact that the plaintiff has produced no evidence of loss or damage or because the court has rejected evidence which was put forward on the loss caused by the breach.

26. The circumstances in which it is alleged that damage occurred have been set out earlier in the evidence. The applicant relies on a quotation of TW & A Hollingshed dated 9 June 2014, some three months after the agreement came to an end. It is to be noted that none of the repair work has been done although it is clear that stock have been using the paddocks. Ms Lyall claims that she has done “temporary repairs” which she claims took her a total of six hours. A total of four hours was apparently necessary to effect repairs to the fence line near the stockyards and two hours was necessary to repair the sagging fence line which was adjacent to the ‘Queensland gate’. She did not attempt to repair damage to the stockyard rail which Mr Bullen has submitted was old and probably damaged before the commencement of his tenancy.

27. I have some difficulty in accepting the quotes of Mr Hollingshed who was not present to give evidence but who was asked to provide quotes for five items. In the first item he was asked to evaluate the cost of removing star pickets and thereby assess the value of work undertaken by the tenant at the landlord’s request. It is significant to note that Mr Hollingshed suggested that 34 galvanised star pickets could be removed by two men in one hour and that each man would be charging at a rate of $70.00 per hour plus GST. When however it came to re-straining of the wires, being a quote to assist Ms Lyall in her claim, Mr Hollingshed suggested that the re-straining of four wires would take two men one hour each at a charge out rate of $110.00 per hour for each man. He also included GST. He provided a quote at a similar hourly rate for replacing broken posts and removing the ‘Queensland gate’ to put a fence back to its original condition. All of these tasks could be undertaken by an experienced farm labourer.

28. Reviewing this quote in the light of the evidence given by Mr Bullen I am satisfied that the estimates made by Mr Hollingshed appear to be both inflated and unreasonable. Mr Bullen has suggested that restraining of wires would be a ten minute job. This does not reflect the time taken to get to the site and to commence the operation even where only one wire required restraining.

29. In assessing the various items claimed by Ms Lyall I propose to allow for an hourly rate of $50.00 without GST. This is the same hourly rate that I was disposed to apply in the related claim and it is higher than a farm labourer’s rate but it would in my view reflect a rate which would be in reality payable to a person experienced in carrying out fencing work.

30. In relation to item two in Mr Hollingshed’s quote for repairing and restraining wires where a cow went through, I am satisfied that I should allow no more than one hour for a man at $50.00 per hour. The amount allowed for that claim is accordingly $50.00.

31. In relation to item four in Mr Hollingshed’s quote, relating to the removal and replacement of a rail in the stockyard, I note that it is a 3 metre rail which was required and that Mr Hollingshed has quoted for an 8 inch by 2 inch rail. I am satisfied that the rail was reasonably old but I accept that it did split when Mr Bullen was working in the yards. Mr Hollingshed has allowed a sum of $200.00 plus GST to replace the rail with an 8 inch by 2 inch rail but I am not satisfied that I should allow any more than $100.00 for the labour and materials to replace a 3 metre, 6 inch by 2 inch rail with an appropriate rail in similar aged condition.

32. In relation to item five in Mr Hollingshead’s quote I accept again that the cattle went through the fence but I am satisfied that the quote from Mr Hollingshed is again excessive. I allow a sum of $60.00 which includes labour to restrain the fence panel where the calf or steer went through and put in galvanised solar pickets. I note that galvanised solar pickets had earlier been retrieved and stored in the shed by Mr Bullen when the fences in the paddock were removed.

33. In relation to item three in the quote from Mr Hollingshed I note that this relates to removal of the ‘Queensland gate’ and restoration of the fence to its original condition. It is apparent from the photographs that the fence line was always set at an angle which would limit the capacity to fully strain the wire without the addition of strainer wires or posts. I note that Ms Lyall agreed to the ‘Queensland gate’ being installed as it assisted in providing additional access to the agistment paddock. I am not satisfied that the installation of the ‘Queensland gate’ in the circumstances constituted any deterioration as a result of inappropriate farming methods within the compilation of s 19A and I accordingly allow no sum under this item.

34. The claims for temporary repairs and time off work have not been made out. The final straining and repair work could have been completed either by a competent fencer or by the applicant if she was skilled in that work. The claim for temporary repairs and time off work to allow for stock movement does not in my view fall within the areas of compensation which can be awarded under the Act in the absence of specific provisions in a written agreement.

35. It follows that the monies payable by the respondent to the applicant is a total sum of $210.00 and that sum should be offset against the money payable by Ms Lyall to Mr Bullen in the related matter COM 14/24057.

J A Ringrose

General Member

Civil and Administrative Tribunal of New South Wales

31 October 2014

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 05 February 2015