McGrath v Newman

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McGRATH -v- NEWMAN & ANOR [2006] WADC 96

CORAM: FENBURY DCJ

HEARD: 23, 24, 25 & 27 JANUARY 2006

DELIVERED : 30 JUNE 2006

FILE NO/S: CIV 1526 of 2004

BETWEEN: GEOFFREY FRANCIS McGRATH
Plaintiff
AND
WALTER ALFRED NEWMAN
LEE ANN NEWMAN
Defendants

Catchwords:

Agistment Agreement - Substantial livestock losses - Losses caused by death or theft - Liability - Turns on own facts

Legislation:

Nil

Result:

Judgment for defendants

Representation:

Counsel:

Plaintiff: In person
Defendants: Mr A P Hershowitz

Solicitors:

Plaintiff: Not applicable
Defendants: Stewart Forbes

Case(s) referred to in judgment(s):

Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220
Humphrey v Phipps (1974) 1 NZLR 650
Smith v Cook (1875) 1 QBD 79
Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) A Tort Rep 81‑292

Case(s) also cited:

Nil

FENBURY DCJ: The plaintiff is a 51 year old part‑time farmer and home builder who owns 800 hectares of land on the Bremmer Bay to Borden Road some distance east of Albany. The plaintiff acquired his property, and commenced farming, in 1993. He is now primarily engaged in building works.
The defendants trade in Lake Grace under the firm name "Woodstock Grazing". They run sheep. All negotiations on their behalf were conducted by Mr Walter Newman ("the defendant").
The defendant lodged an advertisement in the Farm Weekly publication on 7 November 2002 to the following effect:
"Agistment wanted for 1,200 wethers asap. Contact Wally Newman." – (and the phone number is given).
The plaintiff saw this advertisement, contacted the defendant Walter Newman, and as a result agreement was reached for the plaintiff to agist some 1,500 wether lambs at 50 cents per head per week.
The plaintiff brings this action for damages seeking the balance of unpaid agistment fees in the sum of $2,196.05.
The defendants deny that they owe that sum and counterclaim for the value of 328 lambs they maintain were lost during the period of agistment. That period was from approximately 25 November 2002 until the middle of April 2003. The defendants' counterclaim is in the sum of $26,606.32.

The plaintiff's evidence

Being unrepresented, the plaintiff's evidence was somewhat disjointed. Consequently my recounting of it may similarly suffer. However, I was satisfied that the plaintiff had fair opportunity to "say his say".
The plaintiff's property comprised of about 800 acres. Some of the area was cleared for cropping. There was a holding area for stock near improvements comprising a house and other buildings on the north eastern half of the property. However, the bulk of the property was bushland (exhibit 4 aerial photograph). The plaintiff had agisted sheep on three previous occasions. However, it was not his principal line of business. He also cut flowers, grew potatoes and was currently running some goats.
Following the advertisement on 7 November 2002, the plaintiff telephoned the defendant on 12 November and, according to the plaintiff, the defendant came and inspected the property on about 15 November 2002. Although the advertisement was for wethers, wether lambs arrived on 25 November.
The defendant asked about the area of land and the availability of water and the like. He drove around the property in a vehicle. However, the bush was such that one could not drive around it in a vehicle other than a motor bike.
The plaintiff said he told the defendant, Mr Newman, that he had previously provided agistment but it was for older sheep. This was the first time he had dealt with wether lambs.
The plaintiff said that when the lambs arrived on 25 November they arrived in the dark. He realised that they were young and they appeared to be "light" meaning they were thin and lightweight for their age. He said that they had come from an area which had been "declared" as needing drought relief. There was a severe drought in the district at the time which affected all relevant areas. He said the lambs were light and therefore they had started life at a disadvantage, and were therefore, (he seemed to imply), more susceptible to disease and illness. The plaintiff made much of the fact that the lambs were very young and took a long time to be unloaded, and that they were stressed.
After the defendant left, the plaintiff made enquiries and ascertained that the rate for agistment of lambs was between 35 cents and 65 cents per head per week. He sent a facsimile to the defendant which was reproduced at p 13 of the defendants' book of documents which was exhibit 1. The facsimile was dated 2 December 2002 and it is of some significance, and I set it out below:
"I spoke to a couple of people down here that have taken lambs on agistment, rates are from 35 cents – 65 cents but they are not looking after or checking the lambs, and the one at 35 cents the water is having to be carted.
Given I'm having to pump water, you've asked me to keep an eye on them (which has already paid off as we only lost 3 lambs). I have considerable fencing still to do the bare minimum I can accept would be 50 cents a head a week with 6 weeks in advance. This would mean 1500 x 50 cents = $750 per week x 6 weeks = $4,500 plus GST = $4,950. I've tried to do the right thing but you may feel you can get cheaper elsewhere. Regards, Geoff" (Emphasis mine)
The defendant, Mr Newman, did not reply to this facsimile. The plaintiff followed it up by sending an invoice dated 10 December 2002 which was calculated upon the quoted rate.
Although there was some hesitation, apparently, the defendants accepted the rates and eventually deposited the sum of $4,950 into the plaintiff's bank account on 22 December 2002. A further sum was deposited on 4 January and then again in February and March 2003.
During December the plaintiff sent five facsimiles to the defendants which are reproduced in exhibit 1.
On p 3 of exhibit 1 there is a facsimile dated 6 December 2002 which states:
"Can you let me know what day you plan to come down to drench the lambs as I'd like to do that before I let them out the front into the oats paddock".
Then again on 8 December 2002, reproduced at p 4:
"1.Do you know what day you are planning to come down.
2.Do you have something to dress fly strike on a damaged leg?"
Then on 16 December 2002, reproduced at p 5:
"Good morning Wally, the funds you transferred into our account for the agistment do not appear to of (sic) gone in, could you please check details. BankWest Jerramungup account Qualinup … (number given).
Lambs doing fine, lost 2 that you treated for fly".
And then again on 27 December 2002, reproduced at p 6:
"Wally, the agistment for January is due in a couple of days, could you please make sure it makes our account by or on the 31^st December. I'm planning to let the lambs out the back in the

next couple of days, if you want to jet them before then would be the best time".

Then again on 30 December 2002, reproduced at p 7:
"1.Could you please let me know if you are coming down tomorrow to jet the lambs?
2.Tax invoices for agistment, if it is any easier bring a cheque down with you tomorrow.
3.I put a new fence up to make it easier to get the lambs into the shed area."
Then on 4 February 2003, reproduced at p 8:
"Good morning Wally, lambs are doing fine given the wind etc. Bank details in case you require them again … (details supplied)".
It is notable that the plaintiff regularly gave reassurances to the defendant that would have, and the defendant said did, lead him to believe the lambs were being regularly checked and looked after by the plaintiff.
It is common ground that on 10 April 2003 the defendant collected 1,039 of the wether lambs from the plaintiff's property. He was told there were quite a few lambs left in the bush that had not yet been rounded up.
Hence, on 15 April 2004 (exhibit 1 p 9) the plaintiff sent the following facsimile to the defendants:
"Wally, I've sent the final account for the agistment, the balance will be at no charge until we get them all out. I've rounded up another 55 and will lock them in the house paddock for the time being. It will take a while of grabbing them as they come out of the bush but as the pasture comes through in the open areas I feel they will stay there making it easier to catch them."
There was another request for the defendants to deposit funds on 24 April. On 4 June 2003 the plaintiff sent a facsimile asking the defendants to contact him, and there are other facsimiles requesting payment of accounts.
The plaintiff said he never received any written responses from the defendants to his facsimiles but he spoke to the defendant many times on the telephone. During the agistment he became aware the lambs had not been wormed and made arrangements for the defendants to go to his farm and drench the lambs. The defendants provided portable yards to facilitate the process. After the lambs were drenched they were let out into the paddock.
The plaintiff spoke about the amount of rainfall that had occurred in the area, during the agistment and tendered exhibit 2 which was the Bureau of Meteorology rain record for the relevant week. He said that the rains that fell greatly increased the risk of fly strike and he accordingly sent facsimiles to that effect to the defendants. The defendant came down to the farm on 31 December and he helped the lambs to be jetted for fly. In the plaintiff's view the chemicals used were not appropriate and there was a lack of necessary follow up and repeat checking of the presence of fly. He made much of what he asserted to be inadequate treatment for fly and worms of the lambs. He also stated that the lambs were never counted off the truck, but in other evidence it appeared that he accepted that 1,500 lambs were in fact delivered.
The plaintiff gave evidence that on or about 4 January he spoke to the defendant on the telephone. There were problems with the lambs and with the regularity of payment, and he said that he suggested that the defendants find somewhere else to agist the lambs. The plaintiff said that he was doing too much work and did not feel that the rate warranted it. It was too much hassle and he said that he had not been paid in advance for January, by the 4^th of that month, as he required. On 4 January it appeared that the defendants did deposit funds into the account and a confirmatory facsimile reproduced at exhibit 1 p 20 stated as much. The plaintiff said that the arrangements therefore continued.
On 10 January the plaintiff went to Victoria for ten days for a holiday. He told the defendants about this. His brother was "to keep an eye on the property" whilst he was away.
After he returned from holidays on 20 January, until about 9 April, the plaintiff sent a number of facsimiles to the defendants which are reproduced in the book, and to which I have already referred. He said that rains that occurred in early April represented a false break of the season. The arrangement that he had with the defendants was that the agistment would terminate when the season broke. The lambs were to be removed "for the break of the season". It would be much easier to get the lambs out of the bush as there was no water at the back of the block, only bush. There was water at the front. However, when the rains came the lambs would be likely to come out of the bush before germination and that would be the appropriate time for the lambs to be moved to the front of the paddock where there was a dam, and then they could be collected when they came to drink. The plaintiff also said that he wanted to do other things with the land at that time.
The plaintiff said the defendants' son and a French exchange student came and helped get the lambs together. The lambs were eventually placed in two portable yards. The lambs were taken away in two trucks. He said he did not sight any weigh bill, however, he agreed that the amount of lambs on the weigh bill would be likely to be true and, as I mentioned, the total number of lambs as evidenced on the weigh bill on 10 April 2003 was 1,039.
The plaintiff said that it was agreed at that stage that not all the lambs had been rounded up. He said that he had told the defendants' son that he would try and get the lambs in as soon as possible, however, he said that no specific arrangement had been made for the date of collection. He presumed that the defendant would collect the lambs soon, within about two weeks. However the defendant did not come to collect the lambs until about June 2003. The plaintiff said that he thought he had mustered about 145 lambs in the interim, but it was not possible to count them accurately.
It was the plaintiff's evidence that he had agreed with the defendants at the outset that he would look after the lambs by providing water and fencing, but that he never said that he would muster them and he had never said that he would carry out any animal husbandry. He said that he sent the facsimiles on 15 April, 24 April and 4 June, to which I have referred earlier, because be was anxious for the lambs to be gone as he needed the land for other purposes. Some disputation arose about how the lambs could be collected.
On about 9 June 2003 the defendant arrived and the lambs that were collected, some 145 or so, (according to the plaintiff) were put on the truck. Both the plaintiff and the defendant looked in the bush but they were not able to find any more lambs. In the presence of the defendant, a neighbour with an ultra light aircraft was engaged to assist, and he flew over the property. He was watched as he did so by the plaintiff and the defendant. The defendant spoke to the pilot on the radio or mobile telephone about which areas to fly over. The pilot reported not seeing any lambs other than those in a neighbouring property amongst blue gum trees. Those lambs were not the defendants' lambs.
On 10 April a truck driver took the remaining lambs away. On the weigh bill 133 lambs are referred to, but the plaintiff said that he thought there were 137 lambs. The reference in the weigh bill is the more reliable than 1039 and 133 = 1172, giving a figure of 328 lambs missing.
The plaintiff's evidence was that the defendants owed him for agistment of lambs from the end of March to 10 April when the 1,200 or so lambs were taken. He said he reduced the invoice from 1,500 to 1,200 for that period, that is from the end of March to 10 April. He said that for the period after 10 April he invoiced the defendants 440 lambs from 10 April to 18 June, and reproduced in exhibit 1 being the document at p 29 is an invoice dated 22 June 2003 in the sum of $1,807 which the plaintiff said has not been paid.
In his evidence the plaintiff said that he had put all the fences in order before the lambs had arrived. He had also inspected the fences every week. He baited regularly for foxes. He disputes that the defendants lost 328 lambs out of 1,500. By his reckoning he says that the defendants had only lost about 160 lambs.
The plaintiff attributes the lamb losses to a number of factors. He asserts that the condition of the lambs when they arrived was that they were light and had come from a drought affected area, and accordingly he said that there will always be losses. The lambs had not been wormed which was significant according to him. A number of lambs died through fly strikes after the worming but he did not know how many. The plaintiff said that the instructions for the use of an anti‑fly strike chemical called "Clik" had not been properly followed and he tendered a copy of the label which is reproduced at p 44 of exhibit 1.
The plaintiff said the lambs could not have died of thirst. He said there was adequate water the whole time. He seemed to concede the possibility that if they did not know how to find food the way older lambs would have known, then some of the lambs could have died of starvation. He said that the land that he was offering for the agistment was much more suited to older lambs or sheep and his view was that younger lambs would find some of the food unpalatable.
The plaintiff said that in addition, and for no charge, during the agistment he fed the lambs oats and potatoes "off his own bat". When he initially contacted the defendants following the advertisement, he believed the lambs to be wethers and did not become aware they were wether lambs until they were delivered and came off the truck.
Apart from disputing the number of lambs lost, the plaintiff disputed the valuation of lambs and asserted that rather than the lambs being worth $65 for the meat and $20 for wool, making a total of $85, he asserts that they would have been worth somewhere between $20 and $40. He tendered a page from the Farm Weekly of the 24 April 2003 to support that claim. The plaintiff says that there is excessive charge for the wool and for the lost lambs.
In cross‑examination it was put to him that he had agreed to feed the lambs but he denied this. The plaintiff agreed 1,500 wether lambs had been delivered. The plaintiff's attention was then drawn to the defendants' lambs book and particularly the original page from that book which became exhibit 6. According to the defendants, this was a working book to which any number of his employees would normally have access. This page is the page that was created to detail the history of the lambs, the subject of the action. In the document the lambs are described as "orange wethers". This is a reference to the colour of the tag on their ears.
From the exhibit it can be seen the lambs were born in 2002 and they were shorn on 29 September. On that occasion some 1,549 lambs were shorn.
It appears that on 10 December 2002 when the lambs were drenched at the suggestion of the plaintiff, by the defendants, some 1,488 lambs were there. (Thus about 12 lambs had died in the period between 25 November and 10 December 2002).
The next entry is for 31 December 2002 relating to the lambs being treated with "Clik". On this occasion there were 1,487 lambs.
It was put to the plaintiff that at the end of December there were 1,487 of the lambs still alive. This seemed unarguable to me.
No other reference to the number of lambs appears on the document until 10 April 2003 when, it would appear, some 1,009 (query 1,039) lambs were returned to the defendants.
Whatever the number is precisely, by reference to the records, there were very substantial losses of lambs through January, February and March 2003 until 10 April 2003. A loss of the order of 1,487 less 1172 = 315 is suggested.
The plaintiff was asked about this and was unable to say whether there were the number of lambs the defendants' document records as being 1,488, and 1,487. He commented he was not present during the count. The plaintiff said that the lambs had picked up a little during December but he did not think they had picked up very much. The plaintiff confirmed that he had told the defendant that the lambs were doing fine, in various communications in December. He agreed that he had made no mention of significant losses to the defendants at all. He accepted that he had said the lambs were "doing fine" when he returned from holidays and sent a facsimile on 4 February 2003 (exhibit 1 p 8).
The plaintiff maintained that the fencing of the property and the provision of water were his responsibility but that the animal husbandry was to be carried out by the defendants. He was merely to "keep an eye on them" and to tell the defendant if there was anything obviously wrong. The plaintiff said that he kept the lambs close to the yards until 4 December when he released them into a 40 hectare oats paddock until 4 January. They were then released to the bush. He said the lambs were much easier to see in the yards and the oats paddock than they were in the bush. He said it was very difficult if not impossible to see the lambs when they were in the bush.

The plaintiff was taken through various of his accounts, the accuracy of some of which were disputed. He said he checked the boundary fences every week. He said that he did not steal any lambs, and he did not think any of them could have been stolen by others. He said there was no way a truck could be got into the property to steal lambs without going past the portable yards, and the residence. Further, there was no way to muster or get the lambs together to load them on to a truck.
The plaintiff gave his evidence in a satisfactory manner. The essence of the case however, seems to be not so much whether he is telling the truth, but whether he did enough as the agistor, in relation to the defendants' wether lambs.
The plaintiff called two other witnesses to give evidence. Mr Wes Thomas was a farmer of significant experience in the nearby district. He spoke about the prevalence of various pests, including Barber's Pole worm. A Mr Campbell gave evidence in relation to the drenching of lambs and expressed the view that generally speaking, the owner of lambs would be expected to do animal husbandry for those lambs in an agistment situation. He said that he would not have put young lambs on agistment in the plaintiff's bush property because it was more suitable for older lambs.
In essence, the plaintiff's case was that the missing lambs could not have been stolen. He certainly did not steal them. His view was that they must have died and the causes of death were inadequate fly‑strike and worm treatment, coupled with the fact that they were young lambs for whom the property was not suitable. They could not have died of loss of water but may have died of starvation. He said that he was not aware of the number of deaths, and in effect, it came as great surprise to him when so many lambs were missing. His view was that he had done everything that he was required to do contractually as the agistor.

The defendant's evidence

The male defendant, Mr Walter Newman, gave evidence on behalf of the defendants. He is 57 years of age and farms at Newdegate. He attended agricultural college and is obviously a man with extensive experience in his field. He has farmed since 1974. His property comprises of some 11,000 hectares. He has about 12,000 sheep on the property, but sometimes as much as 20,000 when prices are good.
In short, Mr Newman is an expert in the sheep/lambs game.
Mr Newman said that he placed the advertisement in the Farm Weekly. When he came into contact with the plaintiff he said he did not discuss rates on the first occasion. He had been expecting to pay between 20 and 25 cents per head. He said the plaintiff indicated he would keep an eye on the lambs, and he said that he thought the plaintiff was doing so, and if he had thought that he was not, he would have gone to the property much more frequently.
His view was that at 50 cents per head, he was paying a premium for the agistment.
He said the plaintiff had indicated to him he would keep an eye on and check the lambs, and that the facsimiles from the plaintiff indicated that he was doing just that. There were no signs of significant losses up until the end of December when the lambs were counted for the purpose of drenching and treating for fly. There were no apparent problems with the lambs. He had confidence in the plaintiff and drew inferences from what the plaintiff said in his facsimiles, and consequently did not go to check the lambs personally. To do so, in any event, involved an approximate round trip of some 400 kilometres.
When it came to collect the lambs on 10 April 2003 he sent two trucks, expecting that about 1,500 lambs would be collected. When it was apparent that there quite a few lambs missing he said he discussed the missing lambs with the plaintiff. They discussed the possibility that the lambs had somehow got out of the property. He said he did not believe that the lambs had died. When lambs died their remains are apparent for a considerable time. The wool lasts for a very long time. His view was that there was no possibility that more than 300 lambs had died in the bush. His view was that only about 50 to 55 lambs would have died of natural causes during the relevant period. He said that he searched the property by motorbike and saw no sign of fresh lambs tracks. His view was that if 300 lambs or so had died, the fact would have been obvious.

What happened to the lambs?

Although he did not say so, the defendant suggested that something had happened to the lambs other than that they had died. He did not say so but clearly he thought the lambs had been misappropriated by some person.
In the circumstances, and I think indisputably, the 315 missing sheep have either died or been stolen. It seems to me, given the lay of the land and the nature of the country, as the plaintiff asserts, for the sheep to have been stolen they must have been loaded onto a truck and taken away. Given the lack of established sheep pens or yards, and the limited access to the property, if the sheep were stolen, the truck transporting them must have passed by the house on the property, probably twice.
The plaintiff said he never found any signs of relevant vehicle entry or exit from the property. Of course he was not able to speak about the period of 10 days from 10 January during which he was on holiday in Victoria. This was the period during which the plaintiff's brother was meant to "keep an eye on the place".
The plaintiff's brother was not called to give evidence. Probably the plaintiff had the onus to do so given he has the onus of proof that he took proper care of the lambs.
The defendant, as I have commented, was an expert in sheep and lambs.
I accept the defendant's evidence that he would have seen lamb remains if the missing animals had died on the property. It also accords with my own knowledge and experience having spent time on sheep farms in my youth and often seen the remains of dead sheep and lambs in the bush.
The defendant roughly inspected the property for sheep remains and tracks in the bush area but found none.
I do not accept that up to 315 lambs died on the property without being noticed by anybody; that is neither by the plaintiff nor the defendant.
By the process of elimination, on the balance of probabilities, it seems to me that the missing lambs were stolen by persons unknown.
It is not possible to say when this occurred, but all the lambs less minor losses (say 1,487) were on the property at the end of December 2002 when they were treated with "Clik". About 315 lambs were missing by 10 April which is just under three and a half months' later.
It is possible lambs were stolen whilst the plaintiff was on holiday in Victoria in January. Thieves may well have had opportunity at that time. There was no evidence from the plaintiff save that he entrusted his brother with the care of the lambs and heard nothing during his absence on holiday.
I could not make a finding that the sheep were taken during that period but there was no evidence called by the plaintiff as I have mentioned.

Who is responsible?

As I have found, and it is common ground, the plaintiff agreed to agist 1,500 of the defendants' wether lambs at 50 cents per week. This was an agistment agreement. The rate of 50 cents per week was a relatively high rate and in the result there was a correspondingly high duty to take reasonable and proper care of the lambs. Such duty is further emphasised by reason of the fact that the animals the subject of the agistment were young, ie they were lambs.
In closing submissions counsel for the defendant helpfully referred to a number of relevant authorities. It was submitted that the agistment agreement in this case took the form of a bailment because the defendant had no right to occupy the land and was not responsible for the care of the stock. As to this of course the defendant appears to have believed the plaintiff was indeed taking some care of the animals by reference to the tenor and content of the plaintiff's numerous communications.
Counsel submitted that where an agistment agreement takes the form of a bailment the agistor, that is the land owner, must take reasonable and proper care of the animals being agisted and is liable for injury caused by negligence, and further it was submitted that the agistor has the burden of proof that he has taken reasonable and proper care of the animals.
It was submitted that the duty to take reasonable and proper care of the animals was related to the amount paid under the agreement and that in this case a high agistment rate was paid. Counsel referred to Humphrey v Phipps (1974) 1 NZLR 650. The age of the animals was also relevant on this issue and referred to Smith v Cook (1875) 1 QBD 79.
Counsel referred to Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd being a decision of the NSWCA reported in (1994) Aust Torts Reports 81‑292 where Kirby P as he then was explained the duties and liabilities of a bailee as follows:
"1.A bailee for reward, assumes a duty to take such care of the bailed goods as is reasonable in the circumstances. … It is essential to bailment that, unless forgiven by the law, the bailee should restore the property bailed to its lawful owner.
2.In the event of loss of goods during the bailment, the onus is upon the bailee to disprove that the loss is a result of any negligence on its part.
3.The duty of the bailee is not that of an insurer. Thus the bailee is not obliged to take every conceivable or possible precaution to prevent loss of the goods. Its duty is simply to act reasonably. That he should take reasonable care such as a person would take in respect of that person's own goods. The duty is stringent so that the responsibility assumed by the bailee cannot, at least without consent, be delegated to another."
Counsel observed that these duties were also the subject of a decision of the High Court in Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220.
In my view the plaintiff has not discharged the onus of proof that he was not negligent in failing to properly care for the lambs whilst they were in his possession, custody and control. Considering the extent of the losses of lambs during January, February and March and the plaintiff's inability to account for this, an inference that he did not care for them is open.
The plaintiff claims the sum of $2,196.05. This sum was the amount claimed for the agistment costs based upon 1,500 wether lambs for the period 31 March 2003 to 10 April 2003 and 140 wether lambs from 11 April 2003 to 18 June 2003 (par 1 of statement of claim under heading "Breach of Agreement and Demands for Payment" in fact the twelfth paragraph of the document – invoice pleaded).
Obviously, and immediately, it can be seen that the claim assumes that there were 1,500 wether lambs on the property between 31 March and 10 April 2003. As I have mentioned in my reasons the last time the number of wether lambs on the property was ascertained with any certainty was three months before that date being 31 December 2002 when they were treated with "Clik".
In my view it is likely that the 315 missing lambs had disappeared from the property by 31 March 2003. The calculation that is obvious in the invoice pleaded (Exhibit 1 p 29) is based upon 1,200 lambs not 1,500. I think the plaintiff's claim therefore could be no more than the amount the subject of that invoice being $1,807.14. That is arguably the amount of unpaid agistment fees in accordance with the agreement.
The defendants' counterclaim alleges that there has been a loss of 328 lambs in circumstances where a loss of three per cent would be reasonable and, in apparent reference to that loss, the defendant claims for the loss of 283 lambs. I cannot follow that calculation.
In his evidence the defendant said he could not see how more than 50 to 55 lambs could have died in the relevant period.
I accept the greater figure given by the defendant, in all the circumstances that prevailed at the time and having regard to the defendant's extensive expertise.
In my view a calculation based upon the normally expected loss of 55 lambs is a fair and reasonable assessment and for the purposes of this case I shall assume that the defendant has lost 315 less 55 equals 260 lambs for which the plaintiff should be responsible.
As to the claim that the lambs are worth $85 per head, there is vigorous dispute between the parties. As the plaintiff put it in his "substance of expert evidence" at par 5:
"In the opinion of the plaintiff the value of the wether lambs is better represented by actual sales data collected from the Wesfarmers Land Mark Report in the Farm Weekly dated the 24^th of April 2003."
Page 47 of that publication under the heading "Best Heavy Lambs $99" relevantly states:
"A one day sale due to long weekend saw Wesfarmers Land Mark yard only 3,000 sheep and lambs at Midland this week. …
Wethers
Shipping wether prices were easier and sold from $55 to $65. Good quality store wethers sold from $45 to $55 and very plain from $15 to $35."
The plaintiff says that the wether lambs "have been described by expert witnesses for the defendants and it would seem that that condition better fits to quotation of light rendering values between $25 to $30" (sic).
Mr Russell Rosenthal, a witness called by the defendant, was responsible for transportation of the lambs on their initial journey to the plaintiff's property and when they were collected in April and June 2004. In his opinion the lambs were in poorer condition upon collection than they were upon delivery. There seems no doubt that at the relevant time drought conditions existed in the area generally. That was one of the reasons why the defendant sought to agist his lambs. It could not be said, necessarily, that the poor condition of the lambs was the result of lack of care by the plaintiff.
Mr Wayne Fuchsbichler, a wool and livestock specialist, was also called to give evidence on behalf of the defendant. It is upon his evidence that the estimate of value of the lambs was $65 for the meat and $20 for the wool. Of course Mr Fuchsbichler never saw the lambs in question.
The defendant also relied upon sales evidence at and following April 2003 which would suggest that "wethers" were worth $65.
The animals in question, as will be obvious, were wether lambs, not wethers, and they were in poor condition. It is difficult to estimate the value of these animals with any confidence. It is not clear to me whether the sales evidence material is for wethers with any wool on them or not. There is no mention of that matter at all. However, I cannot see why the value of whatever wool there would have been on the lambs should not be brought into calculation. According to the evidence the lambs were shorn on 29 September 2002 and they would have had some wool on them by March/April in the following year, albeit their poor condition.
In my view a fair estimate for the value of the lambs was $60 inclusive of wool.
Thus the defendants suffered a loss of 260 x 60 = $15,600.
The defendants also claim for additional transport costs to fetch the lambs on 18 June 2003, they not being able to collect them all in April because the plaintiff had not mustered them. The plaintiff had an obligation under the bailment agreement to return the lambs when requested and failed to do so and therefore I think the plaintiff should be responsible for the extra transport costs in the sum of $219.45.
The defendants also assert that they have paid to the plaintiff excessive charges by way of agistment fees. The calculations are pleaded in par 3 of the amended substituted defence.
I am satisfied that the defendants have overpaid the plaintiff in the sum of $2,331.87.
Accordingly, I am satisfied on the balance of probabilities that the defendants have made out their counterclaim against the plaintiff in the sum of $18,151.32.
This amount can be set‑off against the amount of $1,807.14 being the amount of unpaid agistment fees which leaves the sum of $16,344.18. In my opinion the defendants are entitled to judgment on their counterclaim in the sum of $16,344.18.
I would allow interest at the rate of 6 per cent per annum from 18 June 2003 to 30 June 2006 (3 years) = $2,941.95 + (12 days) $32.24 = $2,974.19. The defendants are therefore entitled to judgment in the sum of $19,318.37.
Based upon the quantum this case was one suitable for the jurisdiction of the Local Court. Indeed, under the rules it should always have been tried in the Local Court given the lack of objection by the plaintiff to the counterclaim being above $25,000 (see s 34(2)(b) – Local Courts Act 1904).
It seems to me therefore that any costs awarded should be awarded on the Local Court scale.

[2006] WADC 96

30 June 2006