Tocchini v Paroz

[2011] QDC 17

DISTRICT COURT OF QUEENSLAND

CITATION:	Tocchini & Anor v Paroz [2011] QDC 17
PARTIES:	Samuel Mark Tocchini & William Robert Pate as trustees for the Mt Mort Rural Trust (Plaintiff) v Leslie Roland Paroz (Defendant)
FILE NO:	DIS 166/09
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Ipswich
DELIVERED ON:	February 28, 2011
DELIVERED AT:	Ipswich
HEARING DATE:	February 28, 2011
JUDGE:	Koppenol DCJ
ORDER:	1. The defendant pay the plaintiff the amount of $54,044.94 being $47,599.26 for claim and $6,445.68 for interest. 2. The defendant shall, by March 14, 2011 cause to be removed from the plaintiff’s property known as “Hiddenvale”, Stitt Road, Mount Mort described as Lot 4 on Registered Plan 50009, County of Churchill, Parish of Ferguson in the State of Queensland (“the property”), all livestock of whatsoever kind depastured on the property by the defendant. 3. Following the defendant’s removal of the livestock in accordance with paragraph 2 hereof, the defendant by his servants or agents or otherwise is restrained from depasturing any livestock of whatsoever kind on the property. 4. The defendant pay the plaintiff’s costs of and incidental to these proceedings to be assessed on an indemnity basis.
CATCHWORDS:	AGISTMENT – AGREEMENT – INJUNCTION - agistment of cattle - whether plaintiff can recover outstanding agistment fees and fence repair costs - whether injunction requiring defendant to remove his cattle from the property is appropriate
COUNSEL:	F. Forde for the Plaintiff Defendant appeared on his own behalf
SOLICITORS:	Holland & Holland for the Plaintiff Defendant appeared on his own behalf

1. This is a claim for (a) the recovery of agistment fees, fence repair costs and interest, and (b) an injunction requiring the defendant to remove his cattle from the plaintiff’s property and not depasture livestock there.

1. In June 2008, the plaintiff purchased at auction a rural property known as “Hiddenvale” at Stitt Road, Mt Mort, Queensland. The property was sold by statutory trustees for sale, following a dispute between the defendant and his siblings. The defendant’s family had owned the property for generations.

1. At settlement date (July 28, 2008), the defendant admitted having at least 108 cattle (103 cows and 5 bulls, excluding calves) on the property.

1. During the following week, the defendant telephoned Mr Tocchini. He asked whether he could agist his cattle on the property if he paid agistment fees. Mr Tocchini said he had no problem with that provided the defendant paid a reasonable agistment rate. The defendant gave evidence that no reference was made to his paying a reasonable fee―but as the defendant also said that he intended to pay agistment fees, the payment of a reasonable fee would be implied in any event.  Mr Tocchini also said he would send the defendant an agistment agreement.

1. A draft agistment agreement was later sent to the defendant. Further drafts were subsequently exchanged between the parties and on March 24, 2009, the defendant agreed in writing (Ex SMT-18) that he would pay the plaintiff agistment fees of $2.50 plus GST/head/week from July 28, 2008 to November 15, 2008 and $2.80 plus GST/head/week from then “until the cattle are removed from Hiddenvale”.

1. The defendant has continued to agist his cattle on the plaintiff’s property until the present day, without paying any agistment fees.

1. The plaintiff’s property manager (Mr M.A. Phelps) conducted a number of stock counts on the property. His evidence (which I accept) was that the numbers were as follows: March 2009―104; March 27, 2010―approx 195; April 16, 2010―approx 95; February 10, 2011―approx 100; and February 17, 2011―approx 90. However, the defendant admitted he had 145 head on the property from May 12 to November 11, 2009. Thus he admitted he had an additional 37 cattle on the property during that period. He then sold 43 cattle on April 6, 2010 (Ex SMT-26). Thus, the defendant had 50 more cattle (195 minus 145) on the property from March 27, 2010 to April 6, 2010.

1. Expert evidence of agistment fee rates was given by Mr L.I. Heinemann of Ray White. It was uncontested and I accept it. He said a fair and reasonable cattle agistment fee for this property was $2.50 to $3.00 plus GST per head per week from July 2008 to the present and a rate of $2.80 plus GST per head per week was also fair and reasonable.

1. The plaintiff’s claim is for $2.50 per head per week from July 28, 2008 to November 15, 2008 and for $2.80 per head per week from November 16, 2008 to the present. I accept those rates are fair and reasonable.

1. By October 2008, the plaintiff had fenced off a section of a creek on the property because of erosion. Without the plaintiff’s authority, the defendant then knocked down and destroyed 250m of that fence. He said he did that to ensure his cattle had access to water―although Mr Tocchini said (and I accept) the cattle had access to other parts of the creek. The defendant later apologised to the plaintiff for his actions and offered to pay for the repairs. The fence cost $3,190 to repair. The reasonableness of the repair cost was not challenged.

1. The defendant endeavoured to raise various arguments in opposing the plaintiff’s claim. He said (a) the property was really owned by him and not the plaintiff, (b) his cattle had no proper access to water, (c) they were adversely affected by clay-pigeon shooting and some horses on the property, (d) some of his cattle were not dipped and had died and (e) he had been denied access to the property for lengthy periods. Those points were either wrong (ownership) or irrelevant, as not being raised in the Defence (which was prepared by the defendant’s then solicitors), as I repeatedly told the defendant during the trial.[1] The defendant also said that (f) the statutory trustees and not him should pay the agistment fees, although just why that should happen when the agreement was with the defendant himself was never explained.

   [1] I declined the defendant’s request to amend his defence, just as I declined his request to adjourn the trial. The defence had been prepared by the defendant’s then solicitors over a year ago and the trial date was fixed by a judge of the Court more than 4 months ago. The plaintiff would have been prejudiced by any adjournment or amendment. It would have been faced with a substantially different case from the one for which it had prepared.

1. An injunction was also sought, requiring the defendant to remove his cattle from the property by March 14, 2011 and restraining him from subsequently depasturing any livestock on the property. The defendant had previously ignored the plaintiff’s demands to remove his cattle. He urged me not to make those orders but no legal basis for not doing so was raised. The orders sought are appropriate.

1. The plaintiff has also made out its case for agistment fees ($44,409.26) and fence repair costs ($3,190.00) together with interest to date at 10% pa (PD 6/07) ($6,445.68), as follows:

Agistment fees

(a) 108 cattle @$2.50/hd/wk x 15.7 wks (Jul 28-Nov 15, 2008):  $4,239.00

(b) 108 cattle @ $2.80/hd/wk x 51.57 wks (Nov 16, 2008-Nov 12, 2009):   $15,594.77

(c)  37 additional cattle @ $2.80/hd/wk x 26 weeks (May 12-Nov 11, 2009):                $2,693.60

(d) 145 cattle @ $2.80/hd/wk x 21.85 wks (Nov 13, 2009-Apr 14, 2010):    $8,871.10

(e)  50 additional cattle @ $2.80/hd/wk (Mar 27-Apr 6, 2010):  $204.29

(f)  95 cattle @ $2.80/hd/wk x 45.45 wks (Apr 15, 2010-Feb 10, 2011):                       $12,089.70

(g) 100 cattle @ $2.80/hd/wk x 2.56 wks (Feb 11-28, 2011):  $716.80

$44,409.26

Fence

(a) repair cost:  $3,190.00

Interest

(a) on $4,239.00 x 29.5 months (from period midpoint) (“fpm”):   $1,042.09

(b) on $15,594.77 x 21 months fpm:    $2,729.08

(c) on $2,693.60 x 18 months fpm:   $404.04

(d) on $8,871.10 x 13 months fpm:  $961.04

(e) on $204.29 x 11 months fpm:  $17.02

(f) on $12,089.70 x 45.45 wks fpm:  $546.36

(g) on $716.80 x 2.56 wks fpm:  $1.72

(h) on $3,190.00 from Oct 24, 2008 to Feb 28, 2011:  $744.33

$6,445.68

1. There will therefore be orders as follows:

1. The defendant pay the plaintiffs the amount of $54,044.94 being $47,599.26 for claim and $6,445.68 for interest.

2. The defendant shall, by March 14, 2011 cause to be removed from the plaintiff’s property known as “Hiddenvale”, Stitt Road, Mount Mort described as Lot 4 on Registered Plan 50009, County of Churchill, Parish of Ferguson in the State of Queensland (“the property”), all livestock of whatsoever kind depastured on the property by the defendant.

3. Following the defendant’s removal of the livestock in accordance with paragraph 2 thereof, the defendant by his servants or agents or otherwise is retrained from depasturing any livestock of whatsoever kind on the property.

1. After I had made those orders, the plaintiff sought costs on an indemnity basis       because it had offered to settle the matter in February 2010 if the defendant paid it $26,500 plus costs. The defendant did not respond to the offer within the prescribed acceptance period. As the defendant did not show me that another order for costs was appropriate (UCPR, r 360(1)), I will make the following additional order:

4. The defendant pay the plaintiff’s costs of and incidental to these proceedings to be assessed on an indemnity basis.