O'Loughlin v Wilson - [2019] SADC 166

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
O'LOUGHLIN v WILSON
[2019] SADC 166
Judgment of Her Honour Judge Schammer
7 November 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES
In about December 2012, Mr O'Loughlin (the Applicant) and Ms Wilson (the Respondent) agreed that the Respondent would provide agistment and other services with respect to the Applicant's horses at her property at Delamere and he would rent her some of his stable boxes at Morphettville. The parties agreed for a running account to be maintained with respect to the debts incurred by each of them to each other and that from time to time there would be a balancing of the account to determine who owed the other a particular sum of money.
A dispute arose with respect to that agreement in mid-2015.
Following a lengthy trial heard before a Magistrate, the Magistrate determined that the Applicant owed the Respondent the sum of $3,525.35 and awarded judgment to the Respondent against the Applicant in that sum.
The Applicant issued an Application for Review of the Magistrate's decision and sought that in lieu of the judgment made, the court award judgment in his favour against the Respondent in the sum of $8,168.50.
The Applicant claimed that the Magistrate erred:
1. In finding that there was a contract between the parties for the agistment of a mare, 'Flo' and a foal, 'Kat", instead of finding that there was, alternatively, an agreement between the parties that no monies would be payable by him to the Respondent for the agistment of Flo and Kat on the basis that the Respondent would provide such services in exchange for her obtaining a 50% interest in Kat; and
2. In not finding that the Respondent was required to pay him to rent stable boxes 1-5 inclusive, and in particular stable box 4, used by the Respondent as a 'feed and tack room'.
The Applicant failed to attend the hearing of the Application for Review, which was dismissed in his absence.
On 13 August 2019, Mr O'Loughlin filed an interlocutory application seeking an order that the application for review be reinstated. The interlocutory application and the Application for Review were heard together.
Held:
1. The Application for Review is reinstated.
2. The Applicant is to pay the Respondent $40.00 being her wasted costs of attendance at the hearing on 7 August 2019.
3. The judgment of the Magistrate is affirmed.
4. The Application for Review is dismissed.
5. No further order as to costs.
Magistrates Court Act 1991 s 38; District Court Civil Rules 2006 r 230; Magistrates Court (Civil) Rules 2013 - Third Schedule Cost Scale 2, referred to.
Harradine v District Court of South Australia [2012] SASC 96, considered.

O'LOUGHLIN v WILSON
[2019] SADC 166
Background

At all material times, Danielle Wilson (Ms Wilson) has owned land at Delamere, where she provides agistment and other services to horse owners. She also owns several horses.
John O’Loughlin (Mr O’Loughlin) is the owner of stables at Morphettville (the stables).
From about December 2012 until July 2016, Ms Wilson and Mr O’Loughlin agreed that Ms Wilson would provide agistment and other services with respect to Mr O’Loughlin’s horses at her property and he would rent her some of his stable boxes at Morphettville. The parties agreed for a running account to be maintained with respect to the debts incurred by each of them to each other and that from time to time there would be a balancing of the account to determine who owed the other a particular sum of money.
A dispute arose with respect to that agreement when Ms Wilson sent Mr O’Loughlin a detailed set of accounts in March 2015, claiming he owed her a sum in excess of $5,000.00. Neither party has paid any sum to the other for the various services provided.
By Amended Claim dated 17 October 2016, issued in the Christies Beach Magistrates Court, Ms Wilson claimed from Mr O’Loughlin a sum of $8,454.25 (plus filing and solicitor fees) particularised as being the difference in the sum Mr O’Loughlin owed her for agistment and other services provided pursuant to the agreement, over and above sums owed by her to him for renting the stables.
By Amended Defence and Counterclaim dated 14 July 2017, Mr O’Loughlin denied that he owed any sum of money to Ms Wilson pursuant to the agreement, and claimed that instead she owed him the sum of $11,768.50. Mr O’Loughlin claimed that Ms Wilson had overcharged him for some of the services rendered by her to him and had failed to incorporate in her accounts the appropriate number and cost of stable boxes rented by her from time to time.
During a lengthy trial heard before the Magistrate over seven separate sitting days conducted over a period of more than 18 months, the Magistrate heard evidence from Ms Wilson and Mr O’Loughlin and:
Ms Wilson’s partner, Mr William Kutyna;
Mr Matthew Steele, a farrier who provided services to Ms Wilson;
Mr Pino Mirelli, who provided assistance to Ms Wilson and Mr O’Loughlin at the stables from time to time; and
Mr Glenn Dix, a horse trainer who previously rented stable boxes from Mr O’Loughlin.
In addition, the Magistrate considered a large volume of exhibits, including various invoices and accounts and plans, photographs and a video of the stables.
On 7 November 2018, the Magistrate delivered a detailed Written Judgment wherein he determined that Mr O’Loughlin owed Ms Wilson the sum of $3,525.35 and awarded judgment to Ms Wilson against Mr O’Loughlin for that sum. He made no order as to interest or costs.
Review procedure
Section 38 of the Magistrates Court Act 1991 (MCA) outlines the procedure to be followed in the determination of minor civil actions in the Magistrates Court and provides a mechanism whereby a party dissatisfied with a judgment given in a minor civil action may apply to the District Court for a review of the matter.
Section 38(7) of the MCA states:
38—Minor civil actions
(7)The following provisions apply to such a review by the District Court:
(a)subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab)if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b)the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)    in determining the matter, the Court may—
(i)    affirm the judgment; or
(ii)    rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)     if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The Application for Review
On 27 November 2018, Mr O’Loughlin issued an Application for Review of the Magistrate’s decision and sought that in lieu of the judgment made, the court award judgment in his favour against Ms Wilson in the sum of $8,168.50.
Procedural History
The Application for Review was initially listed for hearing on 14 June 2019, which date was vacated due to Ms Wilson’s unavailability. The hearing was tentatively rescheduled for hearing on 19 June 2019, which date was again vacated, this time due to Mr O’Loughlin’s unavailability.
The hearing was adjourned to 7 August 2019, being a date selected as it was convenient to both parties. Mr O’Loughlin did not attend the hearing, nor did he contact the court prior to the hearing to advise of his inability to attend. Ms Wilson was in attendance. In those circumstances, the application for review was dismissed.
On 13 August 2019, Mr O’Loughlin filed an interlocutory application seeking an order that the application for review be reinstated. The interlocutory application was listed for hearing on 6 September 2019. Given the procedural history of the matter in both this court and the Magistrates Court, I directed the parties to attend the hearing on 6 September 2019 ready to proceed both with the interlocutory application and the application for review.
Both parties attended the hearing on 6 September 2019 and were unrepresented, as they had been at the trial before the Magistrate.
Having heard from both parties on both issues I then reserved my decision on both issues.
Interlocutory Application
In support of the interlocutory application, Mr O’Loughlin provided an affidavit on affirmation dated 13 August 2019 wherein he deposed that in the days preceding the hearing date on 7 August 2019, the family pet Siberian Husky, Winter, had required multiple visits to the vet and underwent major surgery on the hearing date. He deposed that following the surgery, Winter required constant supervision for 48 hours and that he was the only family member able to manage the dog’s care. As a result, he had missed the court date.
Annexed to the affidavit were documents confirming Winter’s surgery and the vet’s post-operative recommendations.
Ms Wilson told the court that she had attended Morphettville Racecourse early on the date of the hearing and that she had seen Mr O’Loughlin at the track. As such she submitted that the court should not accept the explanation given by Mr O’Loughlin as to his non-attendance. In response, Mr O’Loughlin initially stated that was incorrect, as his horses were out spelling. Later he acknowledged that he had worked a horse at the track early that morning before his wife and daughter had gone to work, however he maintained that he had missed the hearing because of the situation with the dog.
Although not expressly stated, it appears the interlocutory application was made pursuant to r 230 of the District Court Civil Rules 2006, which gives the court the power to set aside a ‘default judgment’. The effect of the order dismissing the application for review was to give judgment on that application for review in favour of Ms Wilson due to Mr O’Loughlin’s non-attendance, rather than on the merits.
Pursuant to r 230, the Court may, on conditions it thinks just, set aside or vary a default judgment.
I am satisfied that Mr O’Loughlin’s failure to attend the hearing on 7 August 2019 was because of his pre-occupation with matters pertaining to the family dog such that the requirement to attend simply slipped his mind. I am satisfied his failure to attend was not indicative of any desire not to proceed with the application, nor was it in deliberate defiance of the court order to the effect the matter be heard on that date.
While Mr O’Loughlin’s non-attendance resulted in Ms Wilson’s attendance at court that day being wasted, and further delayed the matter, I consider that given the circumstances of this long drawn out and protracted dispute, it is only just that the application for review be reinstated.
I set aside the order I made dismissing the application for review on 7 August 2019. The application for review is reinstated. I order that Mr O’Loughlin pay Ms Wilson’s costs of attending the hearing on 7 August 2019, fixed in the sum of $40.00, representing a half day’s witness fee in accordance with Cost Scale 2 of the Magistrates Court (Civil) Rules 2013 – Third Schedule.
Hearing of Application for Review
In Harradine v District Court of South Australia,[1] Blue J outlined the principles which apply to a review by a District Court judge of a minor civil action.
[1] [2012] SASC 96 at [53].
The review is not in the nature of an appeal, nor is it necessarily a hearing de novo as the judge is entitled to have regard to the evidence adduced before the Magistrate. The judge is not required to re-hear the evidence, although they may do so. Where a case turns on disputed facts or credibility the judge may consider it appropriate to hear the evidence afresh. A judge may also receive ‘fresh evidence’ in certain circumstances.
Ultimately s 38(7)(e) MCA requires the judge to ‘act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’.
As previously outlined, the trial before the Magistrate was protracted. The Magistrate heard evidence over seven separate sitting days. A perusal of the transcript indicates that the Magistrate gave both parties every opportunity to present their respective cases in significant detail and he explored many avenues of enquiry as initiated by him, requiring the parties to provide additional evidence that he considered relevant to determine the issues in dispute.
The Magistrate approached the trial with particular diligence and attention to detail, despite the sum in dispute being modest. He paid similar attention to detail in his carefully reasoned and detailed written judgment.
It is apparent from the Grounds of Appeal listed in the Application for Review and from the submissions made by the parties, that there were two primary issues that Mr O’Loughlin considered the Magistrate had dealt with inappropriately.
Mr O’Loughlin claims that the Magistrate erred:
In finding that there was a contract between the parties for the agistment of a mare, ‘Flo’ and a foal, ‘Kat’, instead of finding that there was, alternatively, an agreement between the parties that no monies would be payable by Mr O’Loughlin to Ms Wilson for the agistment of Flo and Kat on the basis that Ms Wilson would provide such services in exchange for her obtaining a 50% interest in Kat; and
In not finding that Ms Wilson was required to pay Mr O’Loughlin to rent stable boxes 1- 5 inclusive, and in particular stable box 4, used by Ms Wilson as a ‘feed and tack room’.
Much of the evidence at trial was devoted to an examination of these two issues, although the Magistrate also dealt with other issues, including undertaking a detailed analysis of the accounts prepared and relied upon by the parties and Mr O’Loughlin’s general claims with respect to over-servicing and overcharging by Ms Wilson.
The Magistrate’s judgment provides a summary of the evidence he heard, a careful analysis of the evidence and the basis for his findings, some of which, in part, rely on findings of credibility. However, in making such findings the Magistrate was also informed by his own observations of the various exhibits and the inherent likelihood of certain matters having regard to evidence which was not otherwise in dispute, or he found proved.
In these circumstances, on the hearing of the application for review, I elected not to proceed by way of the hearing of evidence ‘afresh’. To do so, in my view, would be contrary to s 38(7)(e) MCA, in terms of the additional time and imposition on the parties necessary to properly revisit the evidence, particularly given that many of the matters in dispute related to events from over five years ago.
I heard submissions from both parties. In addition, I received two exhibits, being a bundle of photographs taken inside the stables (Exhibit D1) and Comparative Quotations for agistment fees submitted by the applicant (Exhibit P1).
Findings on Review
Kat and Flo
In his Amended Defence and Counterclaim, Mr O’Loughlin pleaded that he had been overcharged by Ms Wilson for the services provided by her on his behalf, in that she had:[2]
Charged agistment for the horses known as Flo and Kat when the Plaintiff and the Defendant had agreed that there be no such charge on the basis that the Plaintiff would have a fifty percent (50%) share in Kat pursuant to an oral agreement between the Plaintiff and the Defendant in about August 2015.
(my emphasis)
[2] Amended Defence and Counterclaim at [3(d)].
Mr O’Loughlin claimed he entered into a joint venture agreement with Ms Wilson whereby it was agreed that he would have his mare, Flo, serviced at his expense by a stallion King of Danes, both the mare and the foal born from that union would then be agisted by Ms Wilson at her property at Ms Wilson’s expense and that they would then jointly own the foal 50/50.
Ms Wilson’s claim included expenses relating to services provided by her with respect to the mare, Flo in the total sum of $5,228.55 and the foal, Kat, in the sum of $11,418.40. Ms Wilson denied any alleged agreement was made with respect to the shared ownership of Kat and maintained that she had properly charged for the services she provided with respect to both Flo and Kat.
In addition, Ms Wilson’s Claim initially included a claim for a common law lien over the foal, Kat, which she had retained, given Mr O’Loughlin’s alleged indebtedness to her. Ms Wilson abandoned that claim after the first day of the trial before the Magistrate.
The Magistrate noted:[3]
It was clear by then that this horse was of limited value, was costing the plaintiff money to keep which could not be recouped through its value and, in any event, in respect of it the defendant owed certain fees to third parties which operated as a bar to the horse being sold because it could not be fully registered.
[3] Magistrate’s judgment at [8].
Mr O’Loughlin had initially pursued a claim for damages for unlawful retention of ‘his foal Kat’ on the basis that Ms Wilson had refused to release the foal to him, despite repeated requests made by him since April 2015.[4]
[4] Amended Defence and Counterclaim at [10]-[11].
However, during the trial, and after Kat was returned to him, Mr O’Loughlin confirmed with the Magistrate that he did not pursue a claim for unlawful retention of the foal. When asked why, he said that was because he now had the foal back and because he maintained the foal was half owned by Ms Wilson.[5] The Magistrate observed that in those circumstances, the claim should not have been couched in the terms it had, namely for unlawful retention of ‘his foal’.
[5] T268 lines 5-29.
Mr O’Loughlin’s pleaded claim on this issue refers only to the cost of agistment of Flo and Kat as being captured by the agreement. In his evidence to the Magistrate, Mr O’Loughlin initially stated that his only issue was with the agistment fees charged by Ms Wilson, and not for other services she rendered with respect to Flo and Kat.[6]
[6] T148 lines 7-19; T151 lines 14-34; T155 line 20 - T158 line 30.
He gave the following evidence:[7]
[7]    T158 line 9 - T159 line 1.
Mr O’L             I’m purely claiming the agistment, I am not saying that I don’t owe money for trimming, I don’t owe money for any other part of the bill she gives me –
HH                   Well does this apply to the mare too?
Mr O’L             I’m not claiming that, all –
HH                   Is, it, just remind me, $15 a day?
Mr O’L             $15 up to $17.50 she finished up charging me for the mare.
HH                  Alright so you’re saying the agistment fee was hers –
Mr O’L             Yes, the agistment was hers, anything else she should have billed me –
HH                  - in relation to the mare and the foal.
Mr O’L             - and anything else she should have billed me for that and I’m willing to pay that.
HH                  In relation to the mare.
Mr O’L             And foal.
HH           The whole of the foal, the whole of the cost of all the other things for the foal.
Mr O’L             No because that’s – well I haven’t argued the whole of the cost.
HH                  I don’t care what you’re arguing, I tell you what –
Mr O’L             Well I’m quite –
HH           Hang on, hang on understand this; what I’ll be interested in is what the agreement was because that will dictate what the answer is.
Mr O’L             The agreement was for agisting.

Later in his evidence, Mr O’Loughlin said that pursuant to the agreement there was no expectation that Ms Wilson would have to pay for such things as ‘worming, tetanus needles and things like that’ but that it was agreed Ms Wilson would bear the costs of food and maintenance, namely ‘to look after the mare and the foal.’[8] Mr O’Loughlin said the terminology they had used when reaching the agreement was ‘agist’, rather than ‘look after’.
[8] T275 line 17 - T277 line 1.
However, later in his evidence, Mr O’Loughlin said he thought the agreement had extended to Ms Wilson bearing all costs, including farrier costs and worming.[9]
[9] T306 lines 33-37.
Mr O’Loughlin said the agreement was made verbally at the stables in about 2013, noting Kat was born in 2014, but he could not recall the exact date.
When asked for how long it was intended the mare and foal would remain in Ms Wilson’s care, Mr O’Loughlin initially stated that the mare would be with Ms Wilson ‘for the duration’ of the mare’s pregnancy, being a period of around 11 months, and ‘there was not a time limit put on it when it ended’. In that respect Ms Wilson gave evidence that a new born foal would need to be with the mare for around eight months after its birth to be properly weaned. [10]
[10] T155 lines 19-32.
It transpired that the mare was not released from the stallion’s owner until two months prior to giving birth due to monies outstanding and due to the owner by Mr O’Loughlin. Mr O’Loughlin then stated that what was in fact agreed was that the mare was only to be with Ms Wilson for that two months prior to the birth of the foal, and the weaning period thereafter, which he said was normally only five months.
Mr O’Loughlin referred to a text message that Ms Wilson had sent him on 3 January 2016 (the text message), during their dispute wherein she stated: [11]
Sorry but I’ve done the bills for the foal 50/50 at this point in time. If you want you can sell (send u photos) the foal or sell ur share
(my emphasis)
[11] Exhibit D5.
Mr O’Loughlin argued this clearly supported his claim that the agreement was made in the terms he had outlined. Further, he submitted, both before the Magistrate and during the hearing of the Application for Review, that despite this, Ms Wilson in fact charged him 100% for the costs associated with the foal.
Ms Wilson gave evidence that she recalled a conversation with Mr O’Loughlin where he discussed with her his intention to send a mare to be served by King of Danes, and that as she was interested in sending one of her mares to be served there also, they agreed to ascertain whether the cost would be reduced on the basis that two mares were to be served, rather than one. She had then paid King of Dane’s owner for her mare to be served. Mr O’Loughlin was responsible for payment to the owner for the service costs of his mare.
She said that Mr O’Loughlin’s mare, Flo, came to her property after spending a short period of time at the stables. She said when the foal was born, Mr O’Loughlin asked her for photos to send to the owners. In March 2015, she had arranged for a float taxi to load both Flo and Kat and return them to Mr O’Loughlin but he had contacted her and told her he did not want the foal back in town, so the foal was unloaded and remained with her at Delamere.
During the trial, the Magistrate asked Ms Wilson if there was ever any agreement that they would each take a 50% share in the foal and her response was ‘Not 100% sorry sir’.[12] When asked this same question again, Ms Wilson said:[13]
I think the agreement just kept changing and changing so I don’t know what the agreement was in the end because like I said the agreement – it just got messy and like I said when the foal was born he asked for photos of the foal for the owners.
[12] T152 lines 5-7.
[13] T159 lines 9-16.
As to the text message, Ms Wilson explained this on the basis that she was charging Mr O’Loughlin a rate representing 50% of the mare fees, for the foal, as the costs associated with raising the foal were less than those for a grown mare.[14]
[14] T356 lines 21-26.
She explained that she understood their agreement was that she would charge Mr O’Loughlin a reduced rate for the foal, as she was looking after both the mare and the foal. She said:[15]
…like the deal was that the mare could come to my property and I, you know, because he’s going to have the two there I said I would charge him less for the foal while, you know, for the foal and charge him for the mare so once the foal was born I didn’t charge him because the foal starts eating food as well so they incur a hard feed as well so I charged him a minimal amount for the foal and the mare.
[15] T357 lines 16-23.
She agreed that she was not actually charging Mr O’Loughlin a rate of 50% as stated in the text message, rather she said she initially charged him a reduced rate for Kat’s care, to reflect the fact it cost less to look after a foal and that the rate gradually increased over time. She said she started charging a full rate for Kat when the mare was returned to Mr O’Loughlin.[16]
[16] T365 line 22 - T367 line 36.
With respect to her comment in the text message ‘sell ur share’, she explained that the agreement kept changing, and that it was ‘near the end’ (of their dispute) that Mr O’Loughlin then claimed she owned a half share in Kat.[17]
[17] T359 lines 17-38.
Mr O’Loughlin maintained he had in fact been charged by Ms Wilson at the full daily rate for Kat.
Ms Wilson’s partner, Mr Kutyna, gave evidence that he was never privy to any conversations between Ms Wilson and Mr O’Loughlin concerning the ownership of Kat. However, he did recall an occasion when Mr O’Loughlin had offered to sell Kat to him. He recalled the filly was about 18 months old at the time of this offer and he had a recollection that Mr O’Loughlin referred to a price of $2,500.00. Mr O’Loughlin gave evidence he only ever offered to sell his 50% share in the foal to Mr Kutyna.
Mr Kutyna agreed that in response he may have told Mr O’Loughlin that he would be prepared to pay around $1,750.00 for the foal, but he said he was always going to discuss this with Ms Wilson before agreeing to anything, and that when he had told her about the offer, she had said there was money owing on the horse. As such, the discussion regarding the sale never went any further. He maintained this was a discussion to purchase the foal in her entirety, not a share of the foal.
Mr Kutyna agreed that Ms Wilson had also told him that sending two mares to the stallion, namely a mare owned by her and a mare owned by Mr O’Loughlin, would be cheaper than sending each separately.
Mr Mirelli had a vague recollection of a conversation with Mr O’Loughlin about a baby foal that he kept at Ms Wilson’s property. He was uncertain whether during that discussion Mr O’Loughlin had referred to that horse as being owned either in full or in part by him, or whether Mr O’Loughlin may have mentioned that he and Ms Wilson shared ownership of that foal.
The Magistrate carefully considered all of the evidence on this issue. He concluded that although there were clearly some discussions between the parties with respect to the ownership of Kat, he could not be satisfied that there was ever a concluded contract in the terms as alleged by Mr O’Loughlin.
In this respect, the Magistrate outlined that there was no specific agreement as to precisely when Ms Wilson would commence caring for the mare, Flo, nor was there any evidence as to when the change of ownership of the foal from Mr O’Loughlin to equal shares would occur, with resulting uncertainty as to when Ms Wilson was responsible for various costs pertaining to the foal, how long the foal was to stay at her property and the like. Although Mr O’Loughlin had given evidence that the ownership would be transferred once the foal was returned to him for breaking in and training, he had refused to allow the foal to be returned to the stables with the mare, as he had claimed she was too young to train, but had also given evidence the foal was old enough then to be weaned.
The Magistrate reasoned:[18]
It is clear that according to the defendant’s account of the terms of the contract, if he had then permitted the foal to be sent back to his stables, he would no longer be able to place the whole cost of the keeping of the foal at the feet of the plaintiff, and would then be presumably obliged to take over half the cost of keeping and training the horse.
[18] Magistrate’s judgment at [58].
The Magistrate accepted Ms Wilson’s explanation with respect to the content of the text message. He stated:[19]
…It accords with common sense and the obvious fact that a newborn animal eats less food than an adult. However, even though the text message might be read as a concession to the agreement asserted by the defendant, it is correspondence after the event which does not satisfy me that there was a contract between the parties giving rise to legal enforceability of obligations.
[19] Magistrate’s judgment at [62].
In finding that Mr O’Loughlin had not satisfied him on the balance of probabilities that there was a concluded agreement with respect to Flo and Kat in the terms he had maintained, the Magistrate also had regard to the fact that there was no dispute that Mr O’Loughlin had unpaid debts pertaining to both the mare and the foal with the stud owner. He questioned therefore how even a 50% ownership of the foal could, in practice, have passed to Ms Wilson. Mr O’Loughlin agreed that 50% ownership in the foal could not have passed to Ms Wilson until such time as he had cleared his debts with the owner of the stallion and they had signed appropriate registration papers.
The Magistrate concluded that even if there was a contract in the terms as claimed by Mr O’Loughlin, he had breached an implied term of the contract in that he had failed to clear all debts pertaining to the foal meaning there was no clear title, preventing the transfer of ownership of a 50% share in the foal to Ms Wilson.
Further, the Magistrate accepted the evidence of Mr Kutyna that Mr O’Loughlin had offered to sell him the foal, Kat, rather than his share in the foal.
Although the Magistrate was satisfied there were broad discussions between the parties pertaining to Flo and Kat, he was not satisfied that this amounted to an agreement with settled terms by which each party agreed to be bound.
As such, the Magistrate concluded that Mr O’Loughlin was bound to pay Ms Wilson for agistment and other costs incurred with respect to Flo and Kat, until such time as she improperly retained the foal, being the date Mr O’Loughlin demanded the foal be delivered up to him. He determined that date to be 29 February 2016, being the date of a text message between the parties wherein Mr O’Loughlin expressed his intention to collect the foal that week, to which Ms Wilson had replied with words to the effect that she required her account to be paid in full before she would release Kat to Mr O’Loughlin.
At the hearing before me, Ms Wilson reiterated that she had charged Mr O’Loughlin a lower rate, at the beginning, to care for Kat, which rate increased as Kat grew older and cost more to look after. In this respect, Ms Wilson’s invoices show incremental increases in the daily rate charged for Kat, from $8.00 in account 9 (1/1/15), to $10.00 in account 10 (1/4/15), $12.50 in account 11 (1/6/15) and finally $15.00 in account 12 (1/9/15) and thereafter, noting Flo had been returned to Mr O’Loughlin by this stage.[20] While Flo was in Ms Wilson’s care, she was charging a daily rate of $15.00.
[20] Exhibit P1.
As such, as acknowledged by Ms Wilson, she was not charging Mr O’Loughlin ‘50/50’ for Kat’s care, notwithstanding the wording of the text message.
Mr O’Loughlin submitted that he had made enquiries with other stud owners, who had informed him that usually they did not charge for the care of a foal until weaning, but that Ms Wilson had charged him for the foal from the date of its birth. Ms Wilson disputed this and said she had only charged Mr O’Loughlin for Kat once Kat started feeding. However, I note that on invoice 9, being the first invoice for which a daily fee is charged for Flo, is the notation ‘Kat foal 4-october 14 (no feed)’, and the daily fee was charged for 87 out of 92 days.
Mr O’Loughlin sought to rely on emails he tendered as comparative prices charged by other studs, ranging between $12.50 per day for a weaned foal, to $14.00 for each of the mare and the weaned foal. These quoted rates presumably relate to fees being charged as at June 2019. This evidence was not before the Magistrate and, while it may be inferred that certain stud owners may have charged lesser rates than those charged by Ms Wilson for agistment during 2014 and 2015, there is no evidence before the Court as to comparative rates during the relevant period.
Further, I am unaware as to whether the alternative quotes relied upon by Mr O’Loughlin are in fact a true comparison, given that stud owners offer a much broader service than that offered by Ms Wilson. For example, I am uncertain if those rates only apply in conjunction with the provision of other services.
Mr O’Loughlin maintained that he had been charged at a rate reflecting ‘100%’ for Kat, being inconsistent with the text message and inconsistent with the terms of his claimed agreement with Ms Wilson.
I have carefully considered all of the evidence and the Magistrate’s findings. It was for Mr O’Loughlin to establish the existence of and the terms of the agreement, on the balance of probabilities.
I agree with the observations made by the Magistrate during the course of the trial and his findings as to the general uncertainty of many important terms of the alleged agreement. In light of those uncertainties, I agree with the Magistrate’s finding that he was not satisfied any agreement was concluded in the terms as claimed by Mr O’Loughlin.
While the text message lends some support to Mr O’Loughlin’s claim, it was created while the parties were in dispute with respect to the running account and as such does not inform me as to what was in fact agreed.
I accept Mr O’Loughlin’s submission that Ms Wilson was not charging him 50/50 for Kat, despite the content of the text message. However, Mr O’Loughlin’s claim was that he was not required to pay any of the costs associated with the agistment of Kat and Flo while these horses were at Delamere, not that he was only liable for 50% of those costs. In that respect, the text message does not support Mr O’Loughlin’s claim with respect to the terms of the alleged agreement.
I am satisfied that the finding made by the Magistrate, namely that there was no concluded agreement in the terms as claimed by Mr O’Loughlin, was open to him on the evidence and supported by the evidence. I would have made the same finding. I am not satisfied that the finding should be disturbed.
In his Grounds of Appeal Mr O’Loughlin included a second ground relating to the agistment of Kat and Flo, namely that the Magistrate erred ‘in failing to find that there was no contract for the agistment of the mare and the foal’.
The evidence from both parties was that Kat and Flo were to be agisted at the Delamere property. The issue in dispute at trial was whether Ms Wilson was entitled to charge for the provision of these services. In rejecting Mr O’Loughlin’s claim that he was not required to pay for these services, the Magistrate accepted that Ms Wilson had properly charged Mr O’Loughlin for these services until he demanded the return of Kat on 29 February 2016. He then made the appropriate reduction to Ms Wilson’s claim to reflect that finding.
Having regard to all of the evidence, I agree with the Magistrate’s findings. Pursuant to those findings, Mr O’Loughlin always maintained full ownership of the foal. Although Mr O’Loughlin maintained he had been overcharged for the costs Kat’s agistment, the Magistrate preferred and accepted the evidence of Ms Wilson to Mr O’Loughlin on that issue. Having carefully reviewed the invoices, I agree with the Magistrate’s findings.
Stable Boxes
The Magistrate heard evidence, which was not disputed, that in December 2012, Ms Wilson approached Mr O’Loughlin seeking to rent from him stable boxes at Morphettville.
The Magistrate had reference to a plan of the stable boxes (Exhibit D1). That plan shows eight separate stable boxes and another small room to the left of stable box 4, referred to throughout the trial as the ‘small feed and tack room’. That room was accessible from a passage lane to the left of stable boxes 1, 2 and 3.
Importantly, there was no dispute that it was a rule of racing that if an owner is to keep feed at stables for their horses, it must be secured in a space for the exclusive use of the owner.
Ms Wilson gave evidence, which was not disputed, that she initially agreed to rent stable boxes 3 and 5, each at a cost of $5.00/day. At that time, stable boxes 1 and 2 were used by Mr Dix and Ms Carroll. They were also using the small feed and tack room free of charge, which they accessed via a locked door from the passage lane.
Ms Wilson gave evidence, which was accepted by the Magistrate, that Mr O’Loughlin agreed that in addition to using stable boxes 3 and 5, she could use stable box 4, free of charge, as a feed and tack room. She claimed that this box was not set up as a stable, as it had a dirt floor and no sawdust. She commenced to use ‘stable box 4’ as storage, and although from time to time her running accounts stated she was using more stable boxes than in fact she used, she had not included any charge for use of a feed and tack room.
Ms Wilson called evidence from her partner, Mr Kutyna. He gave evidence that he regularly attended at the stables from the time Ms Wilson commenced renting them. He gave evidence that Ms Wilson originally used stable boxes 3 and 5 and that she used stable box 4, being the room in the back corner of the passage way, between stable boxes 3 and 5, as a feed and tack room. He also gave evidence that when other stable boxes became vacant, Ms Wilson had progressively also used additional stable boxes.[21]
[21] There was considerable evidence at trial on the issue of what other stable boxes were used and when. Despite the wording of Ground 2 of the Notice of Appeal, Mr O’Loughlin confirmed he did not dispute the Magistrate’s findings as to Ms Wilson’s use of the other stable boxes and therefore her liability to pay rent with respect to the other boxes. His only contention was with respect to the Magistrate’s findings with respect to stable box 4; hearing transcript at T14 lines 17-21.
He said that Ms Wilson never used the small feed and tack room, nor did she ever go in that room.
Ms Wilson also called evidence from Mr Mirelli, who had helped Ms Wilson with her horses at the stables from time to time. He gave evidence that he had never entered the small feed and tack room to collect feed or equipment on her behalf, rather he would collect her feed and equipment from stable box 4.
Mr Mirelli recalled the small feed and tack room as being divided, with access from one side being via a door from stable box 4 and access from the other side being via the laneway. He recalled there being household equipment and a gym stored in the small feed and tack room. He never went in there, but could see what was in there from stable box 4. He said there was no sawdust on the floor of stable box 4 and it was never set up as a proper stable.
In cross-examination, Mr Mirelli was asked when he first remembered Ms Wilson using stable box 4 as a feed and tack room. Although he could not remember this, he believed it was not from the outset and he recalled Ms Wilson’s feed being stored in the adjacent hallway in boxes.
By reference to the plan, stable box 4 is immediately adjacent to the small feed and tack room. Ms Wilson gave evidence that there was a door that opened into stable box 4 from the small feed and tack room, and to bar access between the rooms, she put her feed drums and containers up against that door. This meant she had her feed in a secure area, as required.

Mr O’Loughlin disputed that he ever offered Ms Wilson the use of stable box 4 free of charge. He gave evidence that what was in fact agreed was that Ms Wilson could also use part of the ‘small feed and tack room’ free of charge, not stable box 4. His evidence was to the effect that the small feed and tack room could be securely divided into two areas, consistent with his claim that Ms Wilson was offered the use of half of that room for free, not stable box 4.
Mr O’Loughlin gave evidence that at that time the other part of the small feed and tack room was being used by people from the adjacent house. He said the people who used stable boxes 1 and 2 (Mr Dix and Ms Carroll) were not using the small feed and tack room, that they were only there ‘for a very miniscule time’ and that they were ‘bringing in their own food’.[22] He maintained that Mr Dix and Ms Carroll never used the small feed and tack room, rather Ms Wilson had the use of one side of that room and the girls from the house had the use of the other side.
[22] T66 lines 2-18.
Mr O’Loughlin also gave evidence that he had never charged anyone for the use of the small feed and tack room.
Mr O’Loughlin called evidence from Mr Dix to support his claim. Mr Dix gave evidence that when Ms Wilson first started renting stable boxes she rented boxes 3, 6 and 7. The Magistrate rejected that evidence as being inconsistent with the evidence of both Ms Wilson and Mr O’Loughlin, namely that she only rented boxes 3 and 5 at the outset.
Mr Dix gave evidence that when Ms Wilson first started renting stable boxes at Morphettville, he was renting stable boxes 1 and 2 and, contrary to Mr O’Loughlin’s evidence, he was also using the small feed and tack room free of charge. Prior to Ms Wilson’s arrival, he would enter the small feed and tack room via the door in stable box 4. However, once Ms Wilson arrived, he put a lock on the door of the small feed and tack room leading to the passage way, meaning only he and his partner had access to that room via the passage door.
He described the small feed and tack room as having a divider through it, so that it was effectively two small rooms. He said that when Ms Wilson first started using the stable boxes, he moved all of his feed and tack into the right-hand side of the feed and tack room and Ms Wilson moved her feed and tack into the left-hand side. He said that there was a door in the divider which he then locked, meaning Ms Wilson could not access the right-hand side of that room, which securely contained his feed and tack, but she could access the left-hand side, via the door leading from stable box 4.
Mr Dix also gave evidence that he and his partner moved out of the stables about a week after Ms Wilson moved in, and that thereafter Ms Wilson was able to take over the entirety of the small feed and tack room.
Both Ms Wilson and Mr O’Loughlin agreed there was a divider in the small feed and tack room. However, Ms Wilson submitted that the divider did not have a lockable door on it, such that the areas to the left and right of the divider could not be secured in the way as claimed by Mr Dix. She said she could not therefore have ever used the left side of the small feed and tack room to store her feed, while Mr Dix continued to use the right-hand side, as that would mean neither had their feed in a secure area. She claimed that the left-hand side of the small feed and tack room was in fact being used by another person to store items from the main house, including boxes and furniture, and said there was access to that room from a door from the house. She said she did not ever go into the small feed and tack room as there was no need for her to do so.
Mr Dix maintained the small feed and tack room could be divided into two lockable halves.
Mr O’Loughlin gave evidence to the effect that there was a wire grill effectively dividing that small room into two secure areas and he prepared another plan, Exhibit D4, depicting that room, how it was accessed (including a door from the house) and how it was divided. He said that the wire grill between the two sides of the room secured each side, meaning it was, in effect, two small secure areas. He maintained that he only ever gave Ms Wilson free use of the small feed and tack room.
However, upon questioning by the Magistrate, Mr O’Loughlin agreed that because of the wire grill securely dividing the two sides of that room, Ms Wilson could only have accessed that room via the door leading from stable box 4, meaning she could only ever use that room if stable box 4 was otherwise not being used by anyone else. He then added that at certain times there were door sections cut through the wire grill, meaning access to the left-hand side of the small feed and tack room was also possible via the passage lane.
Mr O’Loughlin also gave evidence that prior to its use by Ms Wilson, stable box 4 had been used historically to store feed and he had not derived any rental income from it.[23] He gave evidence, as did Mr Dix, that other stable owners did charge for the use of feed and tack rooms.
[23] T336 lines 1-22.
Mr O’Loughlin relied upon the contents of a text message sent by Ms Wilson to him on 1 June 2016 wherein she made reference to payment by her for a feed room. Ms Wilson could not recall sending that text message but explained that this was sent in the context of her trying to resolve the dispute with Mr O’Loughlin and her intention was to convey to him that her accounts in fact charged for the use of more boxes than she in fact used.
The Magistrate observed that to comply with relevant rules it was necessary for Ms Wilson to have a secure area to store her horses’ feed. The issue in dispute was whether Mr O’Loughlin had offered Ms Wilson stable box 4, or the small feed and tack room, for this purpose.
The Magistrate rejected the evidence of both Mr O’Loughlin and Mr Dix on the critical issue as to whether the small feed and tack room could effectively be securely divided into two lockable spaces, meaning it could be used at the same time by both Ms Wilson and Mr Dix. He accepted Ms Wilson’s evidence that she only ever used stable box 4 as storage for feed and tack and that Mr O’Loughlin offered her the use of stable box 4 for this purpose, initially free of charge.
In making those findings the Magistrate relied upon photographs and video footage of the small feed and tack room from which evidence it was apparent that it could not be securely divided into two rooms. He was critical of Mr O’Loughlin for not highlighting the errors in Mr Dix’s evidence to this effect, being relevant to the Magistrate’s assessment of Mr O’Loughlin’s credibility generally. He noted that there was no dispute that in fact Mr O’Loughlin had offered Ms Wilson an area at the stables, free of charge, to store her feed and tack. He noted it was necessary as per racing rules for such area to be secure. He noted Mr O’Loughlin’s evidence that he had previously allowed another tenant to use stable box 4 to store feed, free of charge.
Having regard to all of the evidence the Magistrate accepted Ms Wilson’s evidence, supported by that of Mr Kutyna, that Mr O’Loughlin had initially offered Ms Wilson the use of storage box 4 as a feed and tack room, at no charge.[24] He accepted Ms Wilson’s explanation with respect to the text message relied upon by Mr O’Loughlin.
[24] The Magistrate also found that Mr O’Loughlin had not made out a claim that he was entitled to be paid by Ms Wilson for the use of any further stable boxes.
The Magistrate noted that Mr Mirelli was generally uncertain in terms of dates and other details and therefore found that he was not correct in his recollection that Ms Wilson had not used stable box 4 as a feed and tack box from the outset, instead preferring the evidence of Ms Wilson and Mr Kutyna on that issue.[25]
[25] Magistrate’s judgment at [21].
However, the Magistrate found that after Mr O’Loughlin had read and digested the information set forth in Ms Wilson’s accounts, being on a date after 11 April 2015, he had made it clear that he expected Ms Wilson to pay for her use of stable box 4. Doing the best he could in terms of ascertaining an appropriate date, the Magistrate determined that Ms Wilson was liable to pay Mr O’Loughlin for the use of stable box 4 as of 1 June 2015 at a rate of $5.00/day. The judgment sum reflected that finding.
I have carefully considered the evidence heard by the Magistrate and the various exhibits, including watching the videos tendered on the USB stick which depict the small feed and tack room. I agree with the comments made by the Magistrate during the trial as to his observations of those videos[26] and his findings in that respect.
[26] T328 line 15 - T330 line 17.
Many of the Magistrate’s findings reflect his assessment that Ms Wilson was both a reliable and credible witness, such that he accepted her evidence over that of Mr O’Loughlin, and in doing so he found her evidence to be in keeping with the other evidence that he heard and accepted.
It is clear from the Magistrate’s line of questioning of Mr O’Loughlin that he found it difficult to accept Mr O’Loughlin’s evidence that Ms Wilson was offered the small feed and tack room free of charge, rather than stable box 4, given that, on his own evidence, the small feed and tack room was being used by others when Ms Wilson first rented the stables, it was necessary for Ms Wilson to securely store her feed and the fact that he had previously allowed another tenant to use stable box 4 free of charge for storage purposes.
In his submissions during the hearing of the application for review, Mr O’Loughlin stated that Ms Wilson could not initially use the small feed and tack room because other tenants were using it. He submitted that she had taken it upon herself to continue to use stable box 4 as a feed and tack room, despite the couple who had been using the small feed and tack room leaving the stables. I infer from this submission that the couple in question was Mr Dix and Ms Carroll. I note these submissions are inconsistent with the evidence Mr O’Loughlin gave at the trial before the Magistrate, namely that the girls from the house were using the small feed and tack room at that time, not Mr Dix and Ms Carroll.
I can see no basis to disturb the findings made by the Magistrate, being findings available on the evidence.
While I acknowledge the Magistrate made some findings based on credibility, my examination of the evidence given before the Magistrate indicates there were a number of matters wherein Mr O’Loughlin gave evidence that was internally inconsistent. Further, although I had limited opportunity to assess the credibility of either Mr O’Loughlin or Ms Wilson, it is of note that Mr O’Loughlin initially denied he was present at the Morphettville Racecourse on 7 August 2019, and was quite certain about that, but then later accepted he was there early that day.
My impression therefore from considering all of the materials is that Mr O’Loughlin was at times prepared to give evidence without careful thought as to its accuracy, in order to advance his claim or to present it in the best light.
In my view, there is simply no reason why I should substitute alternative findings as to credit to those made by the Magistrate, who had the benefit of listening carefully to and observing the parties on numerous occasions over an extended period of time.
The Ground of Appeal relating to the stable boxes was expressed in general terms. During the trial, there was considerable evidence as to what stable boxes were used by Ms Wilson at relevant times and whether her accounts properly reflected that usage.
During the hearing of the application for review I specifically asked Mr O’Loughlin if, other than the findings with respect to stable box 4, he took issue with any of the Magistrate’s findings with respect to the other stable boxes and he said no. Insofar as there is any misunderstanding on my part, and in fact Mr O’Loughlin intended to challenge the Magistrate’s findings as to the use of and payment for stable boxes generally (other than simply the finding as to stable box 4), I see no reason to disturb the Magistrate’s findings, which were largely based on his acceptance of Ms Wilson as a reliable and credible witness.
Finally, on this issue, the Magistrate declined to make any award as to interest. While the judgment sum was based on an assessment of the balance of a running account, it was open to the Magistrate to make an award of interest to reflect the period of time after March 2015, during which Mr O’Loughlin was indebted to Ms Wilson. The fact he did not, in my view, reflects the difficult task the Magistrate had in assessing both the Claim and Counterclaim, having regard to the lack of written records kept and the passage of time.
If, as Mr O’Loughlin claims, the Magistrate calculated the judgment sum by including rates for the agistment of Kat which were excessive, the Magistrate’s decision not to award interest effectively counter-balances this.
I see no reason to disturb the judgment.
Orders
1.On FDN 22, the application for review is reinstated.
2.Mr O’Loughlin is to pay Ms Wilson $40.00 being her wasted costs of attendance at the hearing on 7 August 2019.
3.The judgment of the Magistrate is affirmed.
4. The application for review is dismissed.
5.I make no further order as to costs.