Northern Pastoral Development Company v Banibi Pty Ltd (No 2)

[2011] FCA 736

FEDERAL COURT OF AUSTRALIA

Northern Pastoral Development Company v Banibi Pty Ltd (No 2)
[2011] FCA 736

Citation:		Northern Pastoral Development Company v Banibi Pty Ltd (No 2) [2011] FCA 736
Parties:		NORTHERN PASTORAL DEVELOPMENT COMPANY AS TRUSTEE FOR THE ELSEY PASTORAL TRUST v BANIBI PTY LTD AND PERMANENT CUSTODIANS LIMITED
File number:		NTD 35 of 2010
Judge:		MANSFIELD J
Date of judgment:		23 June 2011
Corrigendum:		7 July 2011
Date of hearing:	23 June 2011
Place:	Adelaide (via video link with Darwin)
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	13
Counsel for the Applicant:	A Wyvill SC and P Walsh
Solicitor for the Applicant:	Paul Walsh
Counsel for the Respondent:	P Maher
Solicitor for the Respondent:	Gaden

FEDERAL COURT OF AUSTRALIA

Northern Pastoral Development Company v Banibi Pty Ltd (No 2) [2011] FCA 736

CORRIGENDUM

1.        The following paragraphs 13, 14 and 15 of the orders are to be deleted:

13.By 23 September 2011, the Applicant shall file and serve on the Respondents its statement of claim setting out its claims in relation to the Disputed Cattle (if any) and the Banibi Cattle.

14.By 14 October 2011, the First Respondent and the Second Respondent shall each file and serve its or their defences to the Applicant’s statement of claim and any cross-claims against the Applicant or another Respondent.

15.By 28 October 2011, the Applicant shall file any reply and defence to the cross-claim and any other Respondent to any cross-claim shall files its defence to that cross-claim.

I certify that the preceding paragraph is a true copy of the Corrigendum herein of the Honourable Justice Mansfield.

Associate: 

Dated:       7 July 2011

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 35 of 2010

BETWEEN:

NORTHERN PASTORAL DEVELOPMENT COMPANY AS TRUSTEE FOR THE ELSEY PASTORAL TRUST
Applicant

AND:

BANIBI PTY LTD
First Respondent

PERMANENT CUSTODIANS LIMITED
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	23 JUNE 2011
WHERE MADE:	ADELAIDE (VIA VIDEO LINK WITH DARWIN)

THE COURT ORDERS THAT:

1.The Applicant have leave to add Permanent Custodians Limited in its capacity as trustee under the Master Trust Deed establishing the RURAL Program as the Second Respondent to these proceedings.

2.The Applicant have leave to amend its Application in these proceedings in terms of the draft annexed to the Notice of Motion dated 16 June 2011 in so far as it concerns the First and Second Respondents.

3.The Second Respondent give not less than 14 days’ notice in writing to the Applicant of any action which it intends to take with respect to mustering, taking into possession, dealing with or taking any step in relation to the cattle on Elsey Station (the Cattle) presently in the Applicant’s possession and control.

4.The Applicant is authorised to undertake a muster (the Muster) of the Cattle substantially in accordance with the terms set out in the Schedule hereto and substantially in accordance with the procedure specified in annexure JOB1 to the affidavit of John Joseph O’Brien, sworn on 18 May 2011, but without prejudice to any claim it may have to recover the costs thereof from any party.

5.The Applicant is to identify by a person appointed for that purpose which of the Cattle from the Muster (the Mustered Cattle) it claims are owned by it.

6.If either the First Respondent or the Second Respondent exercising rights under its stock mortgage granted to it by the First Respondent intends to contend that it owns any of the Mustered Cattle which the Applicant claims to own, the First Respondent or the Second Respondent must:

6.1file and serve a document recording that the First Respondent or the Second Respondent provide to the Court the usual undertaking as to damages in relation to any losses the Applicant may sustain by the orders in this paragraph and paragraph 8 below (and if the Second Respondent exercising its rights under its stock mortgage is acting in the name of the First Respondent such undertaking as to damages shall be given by the Second Respondent, and if the First Respondent is acting on its own right it shall pay the sum of $50,000 into Court as interim security for its undertaking as to damages and the Applicant’s costs in relation to the First Respondent’s claim in that respect).

6.2by a person appointed by it for these purposes, attend the Muster (subject to obtaining the requisite permission which the First Respondent or Second Respondent must use its best endeavours to obtain) and identify to the Applicant the cattle claimed by the Applicant which the First Respondent or Second Respondent claims to own.

7.If either Respondent intends to claim that it owns or has a security interest in or over any of the Mustered Cattle which the Applicant claims to own, the Second Respondent  must:

7.1file and serve a document recording that the Second Respondent provide to the Court the usual undertaking as to damages in relation to any losses the Applicant may sustain by the orders in this paragraph and paragraph 8 below;

7.2by a person appointed by it for these purposes, attend the Muster (subject to obtaining the requisite permission which the Second Respondent must use its best endeavours to obtain) and identify to the Applicant the cattle claimed by the Applicant which the Second Respondent claims to own or have a security interest in or over.

8.In relation to any cattle identified by the First Respondent or the Second Respondent under paragraphs 6 or 7 above (the Disputed Cattle):

8.1the Applicant shall make, keep and provide to the Respondents a proper record of these cattle including by reference to their number, breed, sex, estimated age and condition;

8.2      on its undertaking by its counsel (hereby noted):

8.2.1    to take reasonable care of the Disputed Cattle; and
8.2.2    not to remove the Disputed Cattle from Elsey Station; and

8.2.3not to sell, mortgage, charge or otherwise deal with the Disputed Cattle;

once a proper record has been made, the Applicant shall release the Disputed Cattle back into the Applicant’s herd on Elsey Station, without prejudice to its right to claim a reasonable fee for the services it provides in this respect to the Dispute Cattle.

9.Within 7 days the Applicant is to provide to the Second Respondent copies of such muster and cattle records and records relating to livestock movement and documents which show what stock carries what brands including all year branding and ear tags, including NLIS tags since the commencement of the Licence Agreement which are in its possession, custody or control.

10.      Liberty to any party to apply on short notice.

11.      The matter be listed at 9 am on 26 August 2011 for further directions.

12.Costs reserved.

13.By 23 September 2011, the Applicant shall file and serve on the Respondents its statement of claim setting out its claims in relation to the Disputed Cattle (if any) and the Banibi Cattle.

14.By 14 October 2011, the First Respondent and the Second Respondent shall each file and serve its or their defences to the Applicant’s statement of claim and any cross-claims against the Applicant or another Respondent.

15.By 28 October 2011, the Applicant shall file any reply and defence to the cross-claim and any other Respondent to any cross-claim shall files its defence to that cross-claim.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

Schedule

1.The Applicant will muster all the paddocks the subject of its licence over Elsey Station on days in July and/or August 2011.

2.The Applicant will give the First Respondent and the Second Respondent 14 days’ notice of the days on which it proposes to undertake the Muster and the days it expects the identification of the cattle the subject of the claim as referred to in paragraphs 5, 6 and 7 above to be undertaken.

3.The Applicant will bear the costs of the Muster, subject of any right it may establish in these proceedings to recover such costs or a proportion thereof from the Respondents.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 35 of 2010

BETWEEN: NORTHERN PASTORAL DEVELOPMENT COMPANY AS TRUSTEE FOR THE ELSEY PASTORAL TRUST
Applicant

AND:

BANIBI PTY LTD
First Respondent

PERMANENT CUSTODIANS LIMITED
Second Respondent

JUDGE:	MANSFIELD J
DATE:	23 JUNE 2011
PLACE:	ADELAIDE (VIA VIDEO LINK WITH DARWIN)

REASONS FOR JUDGMENT

1. I have already made orders providing for summary judgment for the Applicant in these proceedings: Northern Pastoral Development Company v Banibi Pty Ltd [2011] FCA 610. The First Respondent has apparently abandoned whatever interest it had in “its” cattle on Elsey Station, because security over that interest is held by Permanent Custodians Limited (herein I refer to Permanent Custodians Limited as the Second Respondent, noting that I am about to join it as the Second Respondent). The orders made were in terms of an injunction of limited duration restraining the First Respondent from mustering or in any way interfering with or attempting to muster any cattle on Elsey Station until 30 September 2011. The consequence was that, in relation to the cattle on Elsey Station, the Applicant would be in a position to muster the cattle under the supervision of an independent expert and to allocate the mustered cattle to its own herd or to the First Respondent’s herd (the Banibi herd) by 30 September 2011.

2. At the time of those final orders, to recognise the derivative interest of the Second Respondent in the Banibi herd (as a result of the Second Respondent claiming security over some of the cattle in possession of the Applicant at Elsey Station) concerning the proper allocation of the cattle to be mustered on Elsey Station, I directed service of those orders on the Second Respondent and I gave the First and Second Respondents liberty to apply for further directions. The Second Respondent then took up the cudgel of protecting its interest in the Banibi herd.

3. Correspondence between the Applicant and the Second Respondent, demonstrated that the Second Respondent has not agreed to the proposed muster taking place in the proposed manner. It has, by notice of its concerns with the Applicant, put the Applicant in a position where it wants to proceed with the muster but is reluctant to do so in face of those concerns.

4. Hence the Applicant has applied to join the Second Respondent as a party (a step which is not resisted) and for an order authorising it to proceed with the muster. The Second Respondent sought an adjournment of the muster for three weeks.

5. It was not contentious between the Applicant and the Second Respondent that a muster of the cattle on Elsey Station has to occur at some point. The points of difference between the parties included whether the terms of the muster as proposed by the Applicant were sufficiently thorough to effect the muster reliably and then to allocate the cattle mustered between the Applicant’s herd and the Banibi herd. Those matters were addressed at a considerably earlier time when the First Respondent was an active party to the proceedings and when the Second Respondent’s interests were, for these purposes, the same as those of the First Respondent. It is intention of the Second Respondent to further explore agreement about these issues which explains the sought adjournment.

6. There was also an issue as to the delivery of relevant documents by the Applicant to the Second Respondent, which were said to be an essential precursor to any muster, so as to assist the Second Respondent at assessing the appropriateness of the proposed procedure and to permit a proper consideration of how the muster should be carried out. In the absence of production of this documentation, the Second Respondent considered it was not in a position to be properly informed so as to participate fully and comprehensively at the proposed meeting. 

7. Essentially, the conflict between the Applicant and Second Respondent boils down to a question of working out who owns or has an interest over and in what cattle, and how identification of categories of cattle should be properly and fairly carried out.

8. It is the parties’ inability to negotiate a satisfactory interim arrangement, and the urgency said to attend the mustering of the cattle, which prompted the Applicant’s notice of motion dated 16 June 2011.

9. What is sought by that motion is to join the Second Respondent to the proceedings, to add a claim for final orders to identify and give effect to (including by separating) the parties interests in the cattle on Elsey Station, to permit the Applicant to muster all the cattle on Elsey Station without interference from the Second Respondent, to establish a procedure for identifying which cattle all parties accept are owned by the Applicant and which cattle belong to the First Respondent (subject to the security or otherwise framed claimed of the Second Respondent over that cattle) and hence which cattle whose ownership is disputed, and finally, to make directions for the identification and determination of the issues concerning title to the cattle. 

10. I have had the benefit of very helpful submissions in this matter, and I propose to make orders along the lines of those drafted by the Applicant. I do so notwithstanding the application of the Second Respondent for an adjournment of the application for three weeks for a few reasons.

11. First, because I am satisfied that there is a significantly great degree of urgency to deal with the matter before that time. Second, because the concerns of the Second Respondent which have been identified are concerns which, in my view, the Second Respondent, aware of its interest through the First Respondent, might have addressed earlier, either through the First respondent or as a complement to the First Respondent, as it was aware of other issues between the Applicant and the First Respondent which initially gave rise to these proceedings. At a practical level, it had a real interest in ensuring the muster previously contemplated was effective to identify all cattle to be mustered and that the herd allocations were appropriate.

12. The Second Respondent’s concerns involve two aspects.  First, to make sure that the processes necessary to mustering the cattle are comprehensive. Presently I see no real reason why the interests of either the First or the Second Respondent will not be properly protected by the proposed orders and the proposed procedure to undertake to muster the cattle. Second, concerns were conveyed over the proper identification of the Banibi herd as distinct from the Applicant’s herd. Since the identification of the mustered cattle will occur towards the end of the process, if the Second Respondent is dissatisfied with the procedure which is presently proposed, that concern can be renewed by the liberty to apply on reasonably short notice provided in these orders.  In the meantime there is no present impediment to the bringing in of the cattle. 

13. In that context I do not see that there is any real prejudice to the Second Respondent by doing so because of the liberty to apply and other orders which strike a balance between providing a framework that gives the parties certainty and provides for flexibility to accommodate changes circumstances.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: 

Dated:       23 June 2011