Walsh v K.C. & W.L. Brain Pty Limited (No. 5)

[2024] NSWDC 335

District Court

New South Wales

Medium Neutral Citation:	Walsh v K.C. & W.L. Brain Pty Limited (No. 5) [2024] NSWDC 335
Hearing dates:	27-28 May 2024
Date of orders:	28 May 2024
Decision date:	28 May 2024
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I allow $1.20 per head for 1,100 ewes for 24 weeks, which, is a sum of $44,880.
Catchwords:	Quantification of claim made by Defendant for agisting sheep on Defendant’s property after it was sold to Defendant by Plaintiff – Plaintiff estopped from arguing his case on an alternative basis.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – Alan David Walsh Defendant – KC & WL Brain Pty Ltd
Representation:	Counsel: Plaintiff – Mr Gunning, M. Defendant – Mr O’Connor, J. Solicitors: Plaintiff – Rural Law Defendant – Walsh & Blair Solicitors
File Number(s):	2020/00107856
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: The final claim made by the defendant is made formally in the pleadings. In the First Amended Cross-claim filed by the defendant on 14 May 2021 there is this claim:

"Ewe Agistment Costs Claim

39. In Breach of Clause 17 of the Dalree Sale Contract, following the settlement of the sale of Dalree to the cross-claimant on 22 March 2017, the cross-defendant failed to remove 1,000 ewes and their progeny from the property from 22 March 2017 to 29 December 2017.

40. From 22 March 2017 to about 26 - 29 December 2017, the cross-claimant incurred the agistment costs of maintaining the 1,100 ewes and their progeny because the cross-defendant failed to remove from Dalree in breach of the Dalree Sale Contract.

41. From 22 March 2017, 17 to 29 December 2017, the cross-claimant requested the cross-defendant remove the 1,100 ewes and their progeny from Dalree.

42. From 22 March 2017 to 29 December 2017, the cross‑defendant refused and failed to remove the cross-defendant's ewes and their progeny from Dalree.

43. As a result of the cross-defendant's failure to remove the 1,100 ewes and progeny from Dalree from 22 March 2017 to 29 December 2017, the cross-claimant suffered loss and damages.

PARTICULARS

(a) From 22 March 2017 to 29 December 2017 the cross-claimant incurred costs of $1.50 plus GST per week for each of the 1,100 ewes and their progeny which the cross-defendant failed to remove from Dalree, being a total cost to the cross-claimant of approximately $66,000 plus GST.

44. The cross-defendant is liable to the cross-claimant in the sum of approximately $66,000 plus GST for the loss suffered by the cross‑claimant as a result of the cross-defendant's failure to remove the 1,100 ewes and their progeny from Dalree from 22 March 2017 to about 29 December 2017."

2. In the defence to the Amended First Cross-claim filed on 20 August 2021 the defendant pleaded this:

"18. The Cross-Defendant denies the allegations set out in paragraphs 39, 40, 41, 42, 43 and 44 of the amended cross-claim and states that:

'(a) The first request made by the cross-claimant for the removal of the cross-defendant's stock was in September 2017.'

PARTICULARS

(i) Phone conversation from Bruce Simpson of Peppin Planners to cross-defendant in September advising of request.

(b) The Cross-Defendant had 800 sheep and their progeny in a paddock of Dalree from 22 March 2017 to 29 December 2017 but states that the lack of available feed in the paddock meant that he had to supplementary feed these 800 head throughout 2017;

(c) Says that the agistment fee of $1.50 per head per week can only be reasonably justified where the agistment includes feed such as lucerne; and

(d) If the Cross-Defendant is required to pay $1.50 per head per week to the Cross-Claimant (which is denied) then he claims that this amount be reduced by the Cross-Defendant's costs of supplementary feed claimed on a quantum meruit basis in respect of:

(i) 1,000 bales feed to supplement the feed [of] 800 sheep @ three bales to the tonne equals 333 tonne @ $200/tonne $66,000

(ii) 60 tonne of oats fed to the sheep @ $200/tonne equals $12,000

(iii) the Cross-Claimant yarded the Cross-Defendant's sheep and left them without water in hot conditions which    resulted in the death of a prized ram $2,000.

20. Further, in relation to paragraphs 39 to 44 of the amended cross‑claim of claim and in answer to the amended cross-claim as a whole, the Cross-Defendant:

(a) relies upon the facts and matters pleaded in paragraphs 13 to 29 of the amended statement of claim; and

(b) claims by way of equitable set-off or a set-off pursuant to s 21 of the Civil Procedure Act the sum of $391,647.60."

3. On 5 August 2022, the defendant filed a second Statement of Cross-claim that passed under the seal of the Court. However, on 5 August 2022 the principal registrar sent a letter to the defendant's solicitor, the substance of which is this:

"I refer to the above document filed via the Online Registry Website and advise it has been voided.

On 11 March 2022, the following order was made:

I grant leave to the defendant, if necessary, to file and serve an amended cross-claim by 4pm on Friday 10 June 2022.

This document does not comply with Uniform Civil Procedure Rule 19.1 - it is filed out of time, without leave or consent.

Additionally, the document has not been signed or dated."

4. I mention this Second Amended Statement of Cross-claim because it is clear that learned counsel for the defendant believed that it had been validly filed and in fact his submissions rely on it to a large extent, but that has now been rendered an otiose exercise because the document has never been filed in accordance with the order that I had made on 22 May 2022. I mention that so that one can better understand the argument made by the defendant in the defendant's Scott Schedule which is MFI 12.

5. The defendant is claiming agistment from 22 March 2017 to 29 December 2017, being a period of 40 weeks at $1.50 plus GST per week for 1,100 ewes. The evidence of Mr Ken Brain concerning the circumstances of this claim can be found in his affidavit of 23 October 2020, which is Exhibit 1 in these proceedings, commencing at [64] which can be found starting in Volume 3 of the Court Book at page 970:

“64. After settlement of the purchase of Dalree in March 2017, Alan failed to remove a mob of approximately 1,100 Dorper ewes and their offspring from the property. Alan moved the sheep into various paddocks including a freshly emerging paddock of wheat that we were hoping to harvest for grain.

65. During lamb marking in March 2017, I had a conversation with Alan to the following effect:

I said:   “You need to move your sheep off Dalree.”

Alan said:   “I don’t have any pastures to use on Hawkers.”

I said:      “You have plenty of feed over there. I only have one paddock of feed you can have at the moment. You can have it for a short time until you make other arrangements because we need to plant crop in all those other paddocks and my cattle need feed as well. If you can’t move the sheep, you need to pay us agistment.”

Alan said:   “Yes okay, we can work that out.”

66. Despite the above conversation, Alan made no steps to pay agistment or to remove his sheep from Dalree from March 2017 until 29 December 2017.

67. The budget we supplied to the NAB on 9 September 2016 referred to above included other crops for harvest in 2017 and 2018 which could not be planted because Alan’s sheep were still on “dalree” until 29 December 2017. We had to hold off on cropping and development plans throughout 2017 and were left in a situation where we had no dry feed for our own stock and no other cropping options. Due to Alan not removing his sheep from Dalree until December 2017, we were forced to put our stock on dry feed and were eventually forced to sell some of our stock.

68. On 24 August 2017, we received an email from Alan stating that there were 1,100 sheep in the mob he left on Dalree. A copy of this email is at page 260 of exhibit KCB-1. We included these sheep in the annual stock return sent to the Local Land Services.

69. On 7 November 2017, our solicitor sent a letter to Alan demanding he remove his sheep and pay agistment fee. A copy of this letter is at pages 261 to 262 of exhibit KCB-1.

70. Alan removed his sheep on 29 December 2017. The total agistment costs incurred from 22 March 2017 to 29 December 2017 is $66,000 plus GST. This cost is summarised below:

(a) 40 weeks @ $1.50 plus GST p/week x 1,100 ewes = $66,000 plus GST.”

6. Unsurprisingly, Mr Brain was cross-examined about this, not by learned counsel for the plaintiff but by his instructing solicitor Mr Long. The relevant evidence is this, commencing at page 27 of the transcript of 9 March 2022 at line 13:

"Q. ….If you could please go over to page 970 paragraph 65? You say:

'During lamb marking in March 2017 I had a conversation with Alan to the following effect. I said, 'You need to move your sheep off Dalree.' Alan said, 'I don't have any pastures to use on Hawkers'.

You said:

'You've got plenty of feed over there, I only have one paddock of feed you can have at the moment. You can have it for a short time until you make other arrangements because we need to plant crop in all those other paddocks and my cattle.'

He said, 'Yes okay, we can work that out.' So firstly I put it to you that conversation didn't take place?

A. It did.

Q. Secondly the sheep you talk about, the lamb marking, that’s marking of juvenile sheep, correct?

A. Yes.

Q. That’s what lamb marking is?

A. Yes.

Q. You might put an ear tag in them; for male ram lambs you might put a band around their testicles or cut them off with a knife?

A. Yes.

Q. So you were doing that work. Who owned the sheep?

A. Mr Walsh.

Q. And you’re working with Mr Walsh on his sheep?

A. Correct.

Q. That was, according to the paragraph above, the context is after settlement of the purchase?

A. Correct.

Q. So you were helping him after the settlement? That’s consistent with the two of you working together, as Mr Walsh says, towards a proposal that you would enter into a joint venture?

A. No.

Q. So, you say in paragraph 68 that you sent an email or you received an email from Alan telling you there were 1,100 sheep in the mob on Dalree on 24 August 2017?

A. Correct.

Q. Why did you need Alan to tell you how many sheep there were? They were on your farm. Didn’t you go and count them?

A. We didn’t need to count them. They weren’t our sheep.

Q. Right, but they were on your—

A. No.

Q. –farm and you needed to know that—

A. We needed to know that for land – for the Local Land Service.

Q. Yes, you had to complete a document for the LLS?

A. Yes.

Q. That said how many sheep you had on the farm. My question to you, why didn’t you just go and count them? They’re on your farm.

HIS HONOUR: I thought counting sheep was a way of going to sleep. I mean, how long do you keep them still to be able to count them?

LONG: You count their legs and divide by four your Honour. It’s usually done as they run past, your Honour, through a small aperture.

WITNESS: Well at one time we did count the sheep.

LONG

Q. How many were there?

A. I don’t know because our local – our, our stock and station agent counted those numbers.

Q. When was that?

A. I can’t remember exactly, no. It was in August, yeah.

Q. The same month you’re asking him how many sheep he’s got?

A. Yes.

Q. So you knew then how many you had?

A. Alan sent them – sent the – Alan told use the amount of sheep that were there. He said, “Put down 1,100”.

Q. Well at page 1234 in the same volume—

A. One—

Q. –it’s the third last page—

A. One two—

Q. –in that – 1234.

A. 1234.

Q. Yep.

A. Yes.

Q. That email consisted, at the bottom bit, of an email from you and Wendy asking Alan or telling him what tonnes from Dalree, what the water bill was, still working on the deep ripping charges and saying, “Where are all the”—

HIS HONOUR

Q. “What sheep numbers do I need to put to the Local Land Services return due 31 August”?

A. Correct.

LONG

Q. And then Alan responded, “Apologies, 1,100 ewes and 38 rams.” That’s at the top.

A. Correct.

Q. Now you say you knew that because you had an agent come out and count them before this email or you got an agent out after?

A. After.

Q. So before this email, before you got Mr Walsh’s email, you didn’t know how many sheep there were?

A. No.

Q. Did your wife go and count them, would she have known how many sheep there were?

A. You’ll have to ask Wendy that.

Q. Did she ever tell you that she counted them before that email arrived?

A. No.

Q. She didn’t tell you how many sheep were there?

A. No.

Q. In fact, she was the one who sent the email.

A. Yes.

Q. Asking Mr Walsh how many sheep?

A. Correct.”

7. In Mr Walsh's affidavit of 20 October 2021, which is exhibit C, Mr Walsh said at [115] this:

"In or around late July or August 2017, I had a conversation with Ken Brain where he said:

'Can you put your sheep in DAL 2 on Dalree so it can be grazed out in preparation for the next crop?'

I replied, 'Definitely'."

8. At [208] of the same affidavit Mr Walsh said this:

"In my November affidavit, I failed to respond to paragraph 65 of Ken Brain's October affidavit in relation to the alleged conversation between myself and Ken Brain during land marking in March 2017. This was an oversight. I deny that this conversation occurred."

9. Commencing at [260] of the same affidavit Mr Walsh said this:

"260. In relation to the Brains' claim for agistment the price of $1.50 per head per week is far too high for the conditions of the agistment. $1.50 per head per week would be a paddock that contained enough feed to support the number of sheep in that paddock. The paddock that the sheep were in had little all feed [sic] in it and I had to feed those sheep approximately $42,000 worth of hay and barley to keep them alive.

261. In or around early 2016, I purchased a set of portable sheep yards for Dalree. Prior to transferring Dalree to the Brains I had only used them once. These portable sheep yards were not an inclusion under the Contract of sale for Dalree and they are not a fixture by nature as they are portable. I had intended that I would move the portable yards to wherever they were required when the transfer of Dalree was finalised. I did remove the race and a handful of the panels but, when Ken and I agreed that I would keep my sheep on Dalree [in] order to eat at DAL 2 as referred to in paragraph 115 above, I used approximately 20 sheep panels as additional barriers in front of 'cocky gates' that were in poor shape to ensure that my sheep were kept in the paddock they were supposed to be contained in. [I do not recite the last two sentences of this paragraph of Mr Brain's affidavit because they raise an issue which is not otherwise addressed in the evidence and contains material that might be prejudicial to the defendant].

262. In addition, those sheep were on Dalree at the time it settled on 22 March 2017. Nothing was said to me by Ken or Wendy Brain about an agistment fee anytime from March 2017 onwards. It was not until in or about October 2017 that I was told by Bruce Simpson that Ken and Wendy Brain had mentioned to him that they wanted me to remove my sheep but no request was made by Ken and Wendy for me to remove my sheep until 7 November 2017."

10. Unfortunately, there is no evidence as to when in the lamb marking was of Mr Walsh's flock of sheep that were on Dalree in March 2017. It seems likely to me that it was probably prior to settlement on 22 March 2017. In the cross‑examination of Mr Walsh commencing at T 16.15, Mr Walsh said a number of things. He said that he had an oral agreement with the defendant about the keeping of sheep on Dalree. He went on to say this commencing at T 18.09, he said this: 

“Q. Did you have a discussion with Mr Brain about leaving the ewes on Dalree?

A. We had a number of discussions and Ken knowingly knew that I had nowhere to take those sheep because I have the arrangement with Hawkers and the cattle. I, I tried to take sheep off where I could, but until those cattle were removed, I had limited paddocks and Ken knew all that, so I was hamstrung in that regard but I also – as soon as I knew that this is where it was going, I have got records to show that I sold a whole swag of lambs and sheep and that to try and accommodate, to, to then get them off the property which was, yeah, extremely difficult.

Q. That was 23 December 2017, was when they were removed?

A. Was 23 December?

Q. 2017 is when Mr and Mrs Brain say that—

A. When I finally got the last of them—

Q. –you removed them.

A. –off, yes.

Q. There’s 20 to 30 paddocks on Hawkers? On the Hawker farm?

A. There, there’d be every bit of that, yes.

Q. Meaning there could be more?

A. Look, that’s a fair estimate but fencing, fencing was only good for probably five or six of them.

Q. I put it to you that Hawkers was clearly a large enough property for you to move the ewes onto as soon as the sale was completed on 22 March 2017, do you agree with that?

A. No, I don’t.

Q. When did you have the conversation with Mr Brain about permitting you to keep the ewes on Dalree?

A. Before, before the contract was signed.

Q. Before it was signed?

A. Yep.

Q. That means before it was exchanged on 8 February 2017?

A. That’s my understanding yes.”

11. On page 20 of the same transcript, Mr Walsh agreed that had he not made a contract with the Hawker brothers permitting them to keep their cattle on the Hawker aggregation after it was sold to Mr Walsh. For a period of one year he could have moved the sheep onto the Hawker aggregation and placed them on the paddocks where the Hawker brothers were still agisting their cattle.

12. He was asked whether he told the Brains about that agreement with the Hawkers and he said that that was exactly the reason why he had reached the oral agreement with Mr Ken Brain. However, he could not tell me whether that agreement was reached before the exchange of contract or before settlement, but merely that it was, "in that time zone". He reiterated at page 21 that the only reason that he allowed the Hawker brothers to leave their cattle on the Pine Lodge part of the Hawker aggregation was because he had talked to Mr and Mrs Brain about leaving his sheep on Dalree.

13. At page 22 Mr Walsh gave this evidence:

"Q. You've given evidence that you had an agreement with the Hawker brothers in the contract for sale of Hawkers that they could keep cattle on Hawkers for a year after you purchased the property, that's correct?

A. That's correct.

Q. I'm suggesting to you that it was because you entered that agreement with the Hawker brothers to allow them to keep their cattle on Hawkers that you left your 1,100 ewes on Dalree, do you agree with that?

A. Yes.

Q. I put it to you that there was no agreement with the Brains in relation to allowing you to keep the ewes on Dalree?

A. No written agreement."

14. He then went on to say that it was very much an oral agreement that he had reached with the Brains. As I pointed out in my primary judgment, the relationship between the plaintiff and the defendant appeared to commence to break down on or about 1 June 2017. To try to salvage the proposed joint venture between the plaintiff and the defendant the parties tried to engage Peppin Planners who were, up until the time the relationship started to break down, trying to put together the proposed joint venture, in particular Mr Bruce Simpson.

15. At Court Book volume 4, page 1381, is a summary of options prepared by Mr Bruce Simpson and sent to the defendant on 11 September 2017 by email at 5.13pm. The first option was on the basis that Mr Walsh retained the ownership of the Dalree rice crop. It then makes allowances for the various work done by each of the parties for the other. In option 1 there was a provision for agistment owed to the Brains. That has been “quantified” as four question marks.

16. Option 2 was based on the Brains retaining the revenue from the Dalree rice crop. Offset against the money owed to Mr Walsh for his work was included the cost of agistment which was valued at $50,000 but next to that were the words, "needs to be confirmed". In other words, Mr Simpson, who was working with Mr Brown, was also from Peppin Planners, and who were being paid by the plaintiff, were proposing a means of settling which included adjustment for the agistment of Mr Walsh's sheep on Dalree after settlement. This is also confirmed in other correspondence passing between the solicitors for the parties.

14. The first piece of correspondence is from Messrs Walsh and Blair, who act for the Brains and the defendant in these proceedings, to Mr Glowrey, a solicitor at Deniliquin who is the personal solicitor for Mr Walsh but was not involved in this litigation. I have had cause to refer to a failure by the plaintiff to call Mr Walsh in his case and the inferences to be drawn from it in my primary judgment. In Walsh and Brain's letter to Mr Glowrey of 29 November 2017 these points are made by Walsh and Blair:

"5. Your client's sheep on 'Dalree' were yarded on Saturday, 25 November for no more than three-quarters of an hour for the purpose of counting;

…..

7. The fact that your client is unhappy with the adjustment agistment rate to be charged by our client and quality of feed should be an encouragement to your client to remove the stock. Further, if the quality of the feed is that poor and is requiring supplemental feed, your client should be able to run the stock on the 'Hawker' property."

18. In a letter of 8 March 2018 to Walsh and Blair Mr Glowrey commenced thus:

"As it is now abundantly clear that there is no prospect of the revival of the proposed joint venture, in any form, we are instructed to provide you with the following details in relation to intra‑party adjustments for work done and money spent and a list of the remaining plant and equipment, of a non‑fixed nature, not included in the sale of 'Dalree', and still to be collected by our client:"

19. On page 5 of the letter there is a heading "Agistment/stock". There is a subheading “Sheep”. This material then is listed:

“Agistment from 22/03/017 (39 weeks) @ $1.40/week

For 800ewes = $1120/wk         $ 43,680

Advice from Agents clearly suggests that the figure of $1.40 per week is only justified where the agistment includes all, and top quality such as lucerne, feed.

Our client had to supplement the 800 sheep with hay and grain as the pasture provided was insufficient to maintain the health/life of the sheep.

Therefore, in order for the Brains to receive their agistment price of $1.40/head the following costs must be deducted for supplement feed that was provided by our client.

The figures below illustrate the hay and grain reserves our client has remaining and also is the basis for our his [sic] costs of supplement feed used:

1400 round bales at beginning of March 2017 and 120 remaining at Jan 2018 of which 380 were used for lambs.

Therefore, 1,000 bales were used to supplement feed the

800 sheep @ 3 bales to the tonne = 333T @ $200T      $ 66,600.00

60T of oats were also fed to sheep – 60T @ $200T      $ 12,000.00

Death of $2,000 Ram                  $ 2,000.00

Sub Total  $ 80,600.00

Less Agistment Fee of               $ 43,680.00DR

Sub Total                   $ 36,920.00

GST         $ 3,692.00

SUB TOTAL PAYABLE TO ALAN WALSH        $ 40,612.00

ADDITIONALLY, IN ORDER TO SUPPLY WATER TO THE SHEEP I HAD TO PAY FOR REPAIRS TO THE PUMP         $ 3,300.00

TOTAL FOR COSTINGS OF THIS CATEGORY PAYABLE TO ALAN WALSH                   $ 43,912.00

Given the amount owed to The Brans and that their charge for agistment (less A Walsh’s costs relating to sheep) is comparable, it would be reasonable that these amounts cancel each other out.”

20. In my primary judgment of 3 March 2023 which can be found at [2023] NSWDC 38 I set out certain terms of the contract for the sale of Dalree. However, I did not set out clause 17 of the contract, which is relevant to the current issue. The cover sheet of the contract for the sale of Dalree can be found at page 119 of the Court Book, which is in volume 1. It provides that the title is to be transferred subject to existing tenancies, but I am not aware that there was any. Clause 17 of the contract is headed “Possession”. It is this:

"17.1. Normally, the vendor must give the purchaser vacant possession of the property on completion.

17.2. The vendor does not have to give vacant possession if -

17.2.1. this contract says that the sale is subject to existing tenancy; and

17.2.2. the contract discloses the provisions of the tenancy (for example, by attaching a copy of the lease and any relevant memorandum or variation).

17.3. Normally, the purchaser can claim compensation (before or after completion) or rescind if any of the land is affected by a protected tenancy (a tenancy affected by part 2, 3, 4 or 5 Landlord and Tenant (Amendment) Act 1948)."

21. There is no provision in the contract at all or any mention of the plaintiff's flock of sheep. Keeping any form of chattel on the property after completion would be theoretically some form of trespass to the purchaser's entitlement to the land. To comply completely with the contract the plaintiff would have had to have removed his flock of sheep from Dalree prior to completion.

22. The evidence of Mr Walsh does not establish exactly when or exactly in what terms his oral contract was. However, the evidence of Mr Brain does tell me his version of what occurred. His version of the oral agreement probably prior to completion tells me that he raised with Mr Walsh the prospect of Mr Walsh's paying for his sheep to stay on the defendant's land. That was what occurred, and it appears to have been done without any complaint until the relationship between the parties commenced to break down on and after 1 June 2017.

23. The cross-defendant's, being the plaintiff, argument is straightforward. He argues through his learned counsel that if there was a breach of contract, a breach of clause 7 of the contract for the sale of land the cross‑claimant's remedy is for breach of contract and the measure of the damages for a breach of the contract is to put the cross‑claimant/defendant in the position in which he would have found himself had the contract been followed.

24. According to what Mr Brain said, he told the plaintiff that he needed to plant crop on the paddock, on which the sheep were, because he needed the crop to feed his cattle.

25. However, there is no evidence as to when Mr Brain was going to plant crop in that paddock, no evidence as to what crop he was to plant, no evidence as to when that crop might be harvested, and there was no evidence of any particular need that he had for feed for his cattle, for example no evidence that he paid for the agistment of his cattle on somebody else's property.

26. Parties can agree as to what damages might be if there is a breach. It is common in contracts to find penalty clauses which prescribe, for example, increased rates of interest if debts are not repaid or provisions for liquidated damages and the like.

27. In paragraph 68 of the affidavit of Mr Brain which I have quoted, he said that if Mr Walsh was unable to move the sheep, "You need to pay us agistment". Subsequently, the parties approached the matter as if the defendant's claim were a claim for agistment. That was raised by Peppin Planners with each of the parties and was raised by their solicitors. The real question is whether I should believe what Mr Walsh said.

28. I have reached the conclusion that I should do so because that is consistent with my earlier findings but is also taken up by the fact that when the agreement commenced, when the proposed joint venture was not entered, and when the parties were seeking to resolve their differences, each party approached the matter as if the agistment had been agreed.

29. In other words, that Mr Brain mentioned agistment is taken up by the parties subsequently and was the subject of their interaction at all material times. Indeed, the parties before me said that this was a case of quantum meruit but now the plaintiff/cross‑defendant resiles from that proposition. It appears to me that the parties agreed, that is they reached consensus ad idem that this item was to be dealt with as if it were a claim for agistment. Parties can do so.

30. The question then becomes what should be allowed for this item. It is clear from paragraph 65, to which I have just referred and quoted earlier, that Mr Brain was prepared to permit the sheep to remain on Dalree, "For a short time", until Mr Walsh could make other arrangements. The question is what the short time should be.

31. It ought be obvious from what I have said already that there was a dispute as to whether the agistment rate was $1.40 per beast per week or whether it was $1.50 per beast per week. The experts agree that $1.50 per beast per week was a reasonable rate at the time.

32. Formal notice was given by the defendant to the plaintiff on 17 November 2017 to remove the sheep from Dalree. That occurred on 29 December 2017. If my mathematics be correct, that is a period of 42 days, which is exactly six weeks. That appears to me to be the "short time", that would allow Mr Walsh to have made appropriate arrangements to remove the sheep from Dalree. Accordingly, I reduce the number of weeks by six so that it becomes 34 weeks. The rate is $1.50 per beast per week. However, I must acknowledge that the plaintiff maintained throughout that he had had to feed the beasts himself using hay and oats.

33. One must note from the letter of Mr Glowrey of 8 March 2018 which I have quoted above says that although agistment fee was allowed for 800 ewes at $1.40 per beast per week, amounting to $43,680, Mr Walsh expended $78,600 on hay and oats to feed the sheep, which was a much larger sum than was allowed for the sheep.

34. However, no one has been able to take me to any evidence as to whence came the bales of hay and whence came the oats, how much Mr Walsh actually paid for the bales of hay and the 6 tonnes of oats and showed me any evidence of the purchase of those commodities by, for example, showing invoices or copies of payments made for them, as was done in so many other fields in the quantum meruit claims which have been before me.

35. Furthermore, because there is a lack of documentation I do not know when the bales of hay were purchased and I cannot ascertain whether they were used to feed the sheep, for example during the summer of 2016/2017, or whether they were used in the winter of 2017 or indeed the spring of 2017. Furthermore, the computation made by Mr Glowrey is at odds with the repeated protestations of Mr Walsh that he paid around $42,000 worth of hay and oats.

36. I can accept that Mr Walsh may have needed to supplement the feed of his sheep whilst they were on Dalree after settlement during the 34 weeks that I have indicated I shall allow.

37. However, absent any hard evidence of the expenditure of either the $78,600 claimed by Mr Glowrey in the letter 8 March 2018 or any other evidence other than Mr Walsh's ipse dixit that he spent $42,000 without telling me anything about the provenance of the fodder given to the sheep, nor the cost of it to him, I believe the appropriate thing to do is to allow a lesser rate per head of sheep than either the 1.50 which the experts agree to be reasonable or the 1.40 which was agitated by Mr Glowrey. I am prepared to allow $1.20 per head for 1,100 ewes for 24 weeks, which, if my mathematics be correct, is a sum of $44,880.

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Decision last updated: 12 August 2024