Knowles t/as Lake View Lodge Stud (ABN 65 874 069 864) v O'Loughlin
[2023] NSWSC 252
•20 March 2023
Supreme Court
New South Wales
Medium Neutral Citation: Knowles t/as Lake View Lodge Stud (ABN 65 874 069 864) v O’Loughlin [2023] NSWSC 252 Hearing dates: 20 March 2023 Date of orders: 20 March 2023 Decision date: 20 March 2023 Jurisdiction: Common Law Before: Lonergan J Decision: Orders 1 to 8 in the short minutes of order signed by the parties and initialled by Lonergan J.
Catchwords: CONTRACT LAW – agistment agreements – oral and written agreements – lawfully terminated– order to vacate property and remove chattels
Legislation Cited: Uncollected Goods Act 1995 (NSW)
Category: Procedural rulings Parties: Trevor Charles Knowles t/as Lake View Lodge Stud (ABN 65 874 069 864) (Plaintiff)
Gerard O’Loughlin (Defendant)Representation: Counsel:
Solicitors:
M Davies (Plaintiff)
L Field, Solicitor (Defendant)
Heard McEwan (Plaintiff)
PDC Law (Defendant)
File Number(s): 2022/00379575 Publication restriction: Nil
REVISED EXTEMPORE JUDGMENT
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Before me today for hearing is a notice of motion filed on 16 February 2023 seeking orders in respect of access to, and items on, a property in Koonawarra, New South Wales.
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Without going into unnecessary detail about the background to the motion, it seems since about 2003 the plaintiff, Mr Knowles, has occupied certain property trading as Lake View Lodge Stud, which is a company that is in the business of horse agistment, cattle agistment and primary producer.
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In 2008 or 2009, Mr Knowles made an agreement with the defendant, Mr O'Loughlin, for certain agisting arrangements for different times and related to different livestock. This arrangement was partly written and sometimes oral, and proceeded well for a while, but then things seemed to break down, the details of which I do not need to go into, but it became apparent that the relationship was not working for Mr Knowles' business, and certain items and a dog had been brought onto the property, which was not part of the arrangement.
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There were some letters written, some texts exchanged and occasionally some misunderstandings and hostile words exchanged as well.
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On 16 December 2022, against the background of some correspondence between Mr Knowles' lawyers and the defendant, a statement of claim was filed which sought orders for a declaration that the agistment agreement between Mr Knowles and Mr O'Loughlin was lawfully terminated, a declaration in relation to trespass against Mr O'Loughlin, some other legal remedies in the nature of nuisance and, in addition, an order for vacant possession, requiring the removal of livestock, personal chattels and possessions by a certain date.
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There was also a claim for some unpaid agistment fees and some other remedies, which, very sensibly, have been put to one side, with a view to resolving the matter as gentlemen who have realised the arrangements that they made no longer work for them. Accordingly, the parties have arrived at agreed short minutes of order to manage and resolve the differences between them relevant to the notice of motion.
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Those agreed short minutes of order entail first, a declaration that the agistment agreement is lawfully terminated, second, that Mr O'Loughlin vacate the land and remove everything of his that is there, third, that this has to happen by 5:00pm on 27 March 2023, and after that time Mr O'Loughlin is not allowed to enter that land unless he has an express written invitation from Mr Knowles; and, fourth, judgment for Mr Knowles for some unpaid agistment fees, with interest.
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Also set out is the arrangement for Mr Knowles to dispose of any uncollected goods under the Uncollected Goods Act1995 (NSW) in terms of anything that is still on the land at 5:01pm on 27 March, as well as some mechanical orders about how that disposal can take place.
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The parties have also agreed as to costs and disbursements in the sum specified. The agreed short minutes of order, which I have had both Mr Knowles and Mr O'Loughlin, who have both attended court today, sign personally. (They have also each been provided with a sealed copy).
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Within the affidavit material read on the notice of motion is a history set out by Mr Knowles in his affidavits of 16 December 2022, updated by his affidavits of 15 February 2023 and 9 March 2023, is sufficient information and history to support this Court exercising its discretion to make orders that are in effect injunctive relief preventing Mr O'Loughlin from going onto that property after that specified date, and orders in the nature of possession so that Mr Knowles can continue to conduct his business on the property without Mr O'Loughlin's presence.
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I accept the submissions made on behalf of Mr Knowles by counsel that the occupation of the land by Mr O'Loughlin was in effect pursuant to a licence and that the terms of the licence comprised any written agistment agreement and oral agistment agreements from time to time, and that the first notice to vacate the land was by oral direction on 9 February 2020. There have been other requests to vacate since that time, leading up to the solicitors' letters in December 2022. Accordingly, based on the uncontested evidence before me, I am satisfied the agistment is terminated and it is appropriate to make the declarations to that effect as set out in order 1 of the short minutes of order.
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It also seems to me that the only avenue of relief in terms of any uncollected items left there is probably the Uncollected Goods Act, and for that reason I am content to make the orders related to that.
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Mr O'Loughlin has agreed to the agistment sum due with interest, and that seems appropriate based on the affidavit material, as is the agreement in terms of payment of costs and disbursements.
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In those circumstances, I am content to make orders 1 to 8 in the signed short minutes of order, which are made by consent but are also made with the backing in effect, of a judgment of this Court, having reviewed the uncontested relevant affidavit material and having satisfied itself the orders agreed are appropriate.
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Decision last updated: 21 March 2023
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