Zinace Pty Ltd v Tomlin - [2002] QDC 363

No judgment structure available for this case.

State Reporting Bureau

Transcript of Proceedings

Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.

DISTRICT COURT

[2002] QDC 363

APPELLATE JURISDICTION
JUDGE ROBIN QC
No 4343 of 2002
ZINACE PTY LTD Appellant
and
DENNIS TOMLIN First Respondent
and
ADAM NOEL FREEMAN Second Respondent
and
KRISTEN LYNNE FREEMAN Third Respondent
and
JEFFREY EARL GRAY AND
PHILLIP ARTHUR HENNESSY Fourth Respondent

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for

their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those

'

1

21122002 rc&sdh (Robin QC DCJ)

and 1
NORMA PURSER Fifth Respondent
BRISBANE

..DATE 12/12/2002 10
JUDGMENT
20
30
40
50

JUDGMENT

2 60

21122002 rc&sdh (Robin QC DCJ)

HIS HONOUR: This is an appeal by Zinace Pty Ltd against the 1
determination by a Magistrate of Senior Constable Tomlin's
application under section 425 of the Police Powers and
Responsibilities Act 2000 for a determination as to what

ought to be done with 101 cattle and three horses which the 10
police had in their possession. That had come about because
Mr Lynton Freeman was the subject of a complaint by the
National Australia Bank that the cattle belonged to it under
a stock mortgage and had been stolen by Mr Freeman who was
20
the grantor under the stock mortgage. The matter got as far
as a jury trial and a successful outcome from Mr Freeman's
point of view.
He is presently the subject of a sequestration order which 30
has been stayed pending the outcome of an appeal to the Full
Court of the Federal Court of Australia. The bankruptcy
proceedings I would infer without having been exposed to the
detail of them are but a recent stage in a long-running 40
dispute between Mr Freeman, who was a grazier, and the bank.
It was a substantial lender to him and had security over his
cattle property Glassford Vale.
50
Difficulties were encountered by Mr Freeman in satisfying
the bank's financial demands. There have been multiple
Supreme Court proceedings which were preceded by a mediation

JUDGMENT

3 60

21122002 rc&sdh (Robin QC DCJ)

conducted by the late Mr Justice Douglas while he was still at 1
the Bar.
A collateral security taken by the bank when the principal

10

mortgage over Glassford Vale was given was the first stock
mortgage dated the 29th of May 1992. It related to some
1,180 cattle in six categories all said to be branded 0LQ.
It was an old system mortgage under which the bank became

the owner of the cattle under the provision whereby: 20
"The mortgagor hereby signs and transfers to the
bank all and singular the sheep, the cattle, horses
and livestock described in the schedule hereto
(hereinafter called the 'livestock') now being on the lands and premises of the mortgagor described in said schedule and all other livestock of the mortgagor which

may be owned or purchased and all future increase and 30
progeny of all of the livestock".

A second stock mortgage to similar effect, but displaying a
more user friendly setting out was signed on 16th September

1996. The schedule this time in six categories appears to 40
refer to 1,580 cattle branded 0LQ. There is a third stock
mortgage dated the 19th of December 1997, whose form
reflects that of the second rather than that of the first, in
which the number of "mortgaged sheep, cattle, horses and
50
livestock" is shown as "1,200 cattle being 500 breeders plus
700 mixed head". The brand appears as 0LQ.
One reason for the reduction in numbers is that sales

JUDGMENT

4 60

21122002 rc&sdh (Robin QC DCJ)

1

occurred in the interim. I have been told there were 134
animals sold between 20 August 1997 and 19 December 1997.
Mr Freeman had an ability to sell animals, strictly with the
bank's written consent, on the basis of accounting to the

10

bank for the proceeds. It is likely that the formality of a
written consent would not be insisted upon. I am satisfied
that the bank would not lose any of its entitlements by
having acquiesced in informality of that kind.

20

The bank appointed receivers around the 12th of October
2000. Sales of cattle in numbers somewhere between 400 and
500 had been conducted by the receivers. It's clear that a

large number have gone missing in some way, given that only 30
101 remain. Those were located by the police on the property
of a Mrs Williams at Skeleton Creek. The Stock Squad caused
an experienced valuer to catalogue, describe and value those
101 animals. The document produced became Exhibit 26 before
40
the Magistrate in Constable Tomlin's application and was the
basis of the Magistrate's allocation of animals in his final
determination, in accordance with which Zinace Pty Ltd was
awarded 11 animals, being those "branded on the offside and
near side with VPB or on the offside only with a VPB". 50
The remaining cattle were determined to belong to the bank
and likewise, three horses. I think it may be necessary,

JUDGMENT

5 60

21122002 rc&sdh (Robin QC DCJ)

when I have finished delivering these reasons, to invite the 1
parties, if they wish to, to make supplementary submissions
about the horses which technically come within the stock
mortgages where horses are described. I think I am right in

saying that in the three schedules that have been produced 10
there has never been a reference to anything other than
cattle - giving rise to a question as to whether,
notwithstanding the language of the standard formal
documents, there ever was an intention to include horses in
20
the stock mortgage. There may be other documents in the
substantial quantity of exhibits the Magistrate had before
him which shed light on that possibly interesting question.
Zinace Pty Ltd, the appellant, came into the picture at a 30
time when Mr Freeman clearly was in a difficult, if not
diabolical, financial situation, particularly as against the
bank. It seems it may have been some joint venture vehicle
for an enterprise involving Mr Freeman and a geologist, 40
Mr Puce, focusing on minerals. More recently, I think it's
incontrovertible that the company has become involved in
purchasing, holding and perhaps selling cattle, I would
infer as a means identified by Mr Freeman by which he might
50
engage in his accustomed activities and support himself
and/or his family without needing to be concerned about
claims by the bank. Mr Freeman certainly would not be the
only person striking financial trouble who approached things

JUDGMENT

6 60

21122002 rc&sdh (Robin QC DCJ)

1

in that way. As I understand the law, he was entitled to do
that.
What concerned the Magistrate and what concerns this Court

10

on appeal is whether he has done it in a way which involves
depriving the bank of its cattle. The Magistrate was very
critical of Mr Freeman, noting in his careful reasons for
judgment, of 28th of October 2002, that he had "created a

confusing smokescreen of evidence to gain the benefit to his 20
advantage (regarding) ownership of the majority of the
cattle (which) in fact belonged to the bank under the stock
mortgage."
30
In the proceeding before the Magistrate, the only claimants
to cattle were Zinace Pty Ltd and the bank. Each party
seems to have been given unfettered opportunity by the
Magistrate to present evidence through witnesses and as
40
documentary exhibits. The hearing lasted days and the
Magistrate's reasons suggest he gave careful consideration
to the evidence before him. I have striven to be careful in
this appeal to avoid generalisations which might be taken as
indicating what ought to happen in section 425 applications 50
and in appeals from the determinations that magistrates
make. It is a new area of jurisprudence, replacing the old
regime under section 39 of the Justices Act 1886 which no

JUDGMENT

7 60

21122002 rc&sdh (Robin QC DCJ)

longer applies to police officers. 1
I have been among those who doubted whether there was a
right of appeal under section 45 of the Magistrates Court
Act or section 222 of the Justices Act against a

Magistrate's determination. The Court of Appeal decision in 10
Ketchell v. Wynch, Appeal No 5994 of 2001, makes it clear,
through the expansive interpretation placed upon "action" in
section 45, that there is such an appeal as of right. It
also appears to follow from that Court of Appeal decision
20
that the UCPR provisions and rules 782 and following apply
in the appeal which, accordingly, is one by way of
rehearing. See rule 785(1) and rule 765. The Court tries
the matter again on the evidence below. The appeal by way
of rehearing is not a hearing de novo. I took the parties 30
to have agreed in that approach, so there is nothing for me
to decide.
Mr Gorman, appearing for the appellant, sought to adduce 40
further evidence in the form of multiple affidavits by
Mr Freeman. In the end, I have not had to have regard to
that material. I am doubtful that it would have been
appropriate to, in any event, since the fairly rigorous
50
tests for introduction of further evidence on appeal would
have to be satisfied. In my opinion, they were not. My
understanding of the "new" evidence is that, in large, it is
simply a restatement of assertions Mr Freeman has made

JUDGMENT

8 60

21122002 rc&sdh (Robin QC DCJ)

1

before, many of which have been rejected by the Magistrate.
On ordinary principles, it would not be open to the
appellant to revisit those matters.

10

I do not wish to be taken as suggesting is that, in appeals
such as the present, the Court ought necessarily to be
opposed to reception of new evidence. Section 425
situations will be many and various. I would expect there

will be some in which perhaps because goods are perishable or 20
for other reasons, applications have to be dealt with
extremely urgently and in a relatively informal way. It may
be that an appeal offers not only the luxury of a more
leisurely hearing but also a proper occasion for the 30
examination of fuller evidence which may be more revelatory of
the truth of matters.
Before the Magistrate a transcript of parts, at least, of
40
the evidence given in the criminal trial became Exhibit 32.
Two different uses were sought to be made of that material.
The first was to discredit the evidence of Miss Green who
was called by the bank. The second was to expand on the
evidence of Mr Freeman by getting before the Magistrate 50
additional details which Mr Freeman, who gave evidence
before the Magistrate at considerable length, had previously
given before the jury. The Magistrate was invited to make

JUDGMENT

9 60

21122002 rc&sdh (Robin QC DCJ)

such use of Exhibit 32 in the closing address of Zinace's 1
counsel. I think it would have been open to he Magistrate
to use such material and I would not wish to say anything
against a course of avoiding the repetition of evidence by

use of transcripts of evidence that witnesses had given on 10
other occasions. That might often be productive of
economy. I am not sure that anything in this appeal
particularly turns on it, but it seems to me this was not a
case where the Magistrate was required to proceed in that
20
way.
As far as Miss Green particularly is concerned, there are
elements of unfairness in her not having been invited, when
she was cross-examined by Mr Wilson, to comment on what 30
seems to be the fact that she gave much more confused and
conflicting evidence before the jury. There is no way of
knowing whether the Magistrate took Exhibit 32 into account
in accepting, as he did, Miss Green's evidence. In this 40
appeal, I think the Court should proceed on the basis that
the evidence before him from Miss Green was acceptable and
accepted. I certainly do not think it is possible for this
Court, which has not observed the lady give evidence on any
50
occasion, to reject a favourable assessment of credibility
by the Magistrate, given the advantage he had in the way the
matter unfolded.

JUDGMENT

10 60

21122002 rc&sdh (Robin QC DCJ)

1

I am not sure that Mr Perkins, who represented the bank
before the Magistrate and at the appeal, had fair notice
that Zinace was relying on Mr Freeman's evidence before the
jury as positive evidence in relation to the circumstances

10

of the particular cattle. I do not think my unwillingness
to place reliance on it in the appeal is going to
disadvantage Zinace Pty Ltd in any event.

The first position of the appellant is that none of the 20
cattle belonged to the bank because the stock mortgages were
all invalid. The proposition in relation to the last stock
mortgage, which I think was advanced before the Magistrate
unsuccessfully, was that Mr Freeman was in such a state of 30
mind-----

MR PERKINS: Your Honour, might I interrupt. I have - I did see in the transcript that Mr Wilson expressly didn't put that.
HIS HONOUR: Sorry, thank you.
40

MR PERKINS: And I think I said he had, but I saw in the transcript - I said to my friend at lunchtime that he hadn't. He expressly said he wasn't relying on that.
HIS HONOUR: I will leave this exchange in the reasons.
It is a simple way to get things clear. Thank you. 50
Although there may have been no challenge before the
Magistrate on that basis, there has been a challenge to
associated to documentation by Mr Freeman in Supreme Court

JUDGMENT

11 60

21122002 rc&sdh (Robin QC DCJ)

proceedings. Those reached in the Court of Appeal in 1
National Australia Bank Limited v. Freeman 2001, QCA 473. I
am told there is an application for leave to appeal to the
High Court on Mr Freeman's part, also that the application

does not at present specifically relate to the third stock 10
mortgage. It has not been suggested that there is any
reason for this Court to delay a decision in the appeal
until it is known whether the High Court will entertain
Mr Freeman's appeal to it.
20
A challenge which has been made to the third stock mortgage
is that there is no consideration for it. Mr Gorman has
relied on some decisions of the Supreme Court of Victoria.
I will not delay now, but will in due course add references to 30
them. They are Elder, Smith and Company Limited v McKellar
(1895) 21 VLR 664 and Geddes v McDonnell (1896) 22 VLR 330.
While those decisions support Zinace's contention,
they are of no help, in my view, because Mr Perkins has been 40
able to point to evidence which clearly shows there was
consideration.
I refer to what has been called the "mediation deed" of the
50
4th day of December 1997, Exhibit 19 before the Magistrate,
which records the agreement the parties reached through the
auspices of Mr Douglas. Although it did not specifically
contemplate the stock mortgage, that instrument (which, like

JUDGMENT

12 60

21122002 rc&sdh (Robin QC DCJ)

1

the others, is in a form of a deed with the usual
consequences as to requirement of consideration) is one the
parties executed at the same time, significantly, as a
capitals bill facility also dated the 19th December 1999.

10

This was Exhibit 22 before the Magistrate, which incorporates
a new lending arrangement and seems to me to face no
consideration problems whatsoever.

As I understand Mr Gorman's argument, related to the 20
consideration point were arguments under the Bills of Sale
Act 1955 as amended. Section 7B had a place in the
legislation between 1992 and 1999, but it is no longer
there. I am unable to understand any basis on which it 30
could be irrelevant.
Reference is also made to section 12 under which a
registration under the Act expires after five years. As I
40
understand it, under the general principles that apply to the
Bills of Sale and Other Instruments Act 1955, arrangements
between parties have effect according to their terms. The
purpose of the Act is to regulate the situations of third
parties which I do not think there are present here in any 50
relevant way. The five-year period, in any event, would not
have lapsed in respect of the second stock mortgage. In

JUDGMENT

13 60

21122002 rc&sdh (Robin QC DCJ)

relation to it, as I understand it, the unsuccessful 1
consideration argument was also raised.
I have been unable to identify any basis on which the bank
is not entitled to its full rights as set out in the stock

10

mortgages and particularly the last. I have been referred by
Mr Perkins to a decision in an analogous context - of
guarantees which, if applicable, would protect the bank
against any claim that by taking a later "security" it lost

its ability to rely on an earlier one. This is Australia 20
and New Zealand Banking Group Limited v. Steffen, Plaint 511
of 1993, judgment delivered upon a presently uncertain date
in 1995.
30
Mr Gorman made submissions (that would apply from the stage
now reached) that it is not sufficient for the bank to prove
that particular cattle are branded 0LQ for them to come
under the "bill of sale", or stock mortgage. The bank must
40
also prove those cattle belong to Mr Freeman, he submitted.
There was evidence before the Magistrate that within the
Freeman family, the brand was used to indicate which family
member was the owner of a particular animal by an appropriate
placement of the brand. 50
The Magistrate summarised Mr Freeman's evidence before him
as follows:

JUDGMENT

14 60

21122002 rc&sdh (Robin QC DCJ)

"I will endeavour to explain how the brand was used to 1
determine ownership of cattle on Glassfordvale according
to Mr. Freeman -

1. Lynton Freeman OLQ on the off side ribs.
2. Adam Freeman OLQ on the off side on the rump.

3. Kirsten Freeman OLQ on the near side on the
rump.

4. Norma Purser OLQ on the neck or on the top of 10
the shoulder."

Conflicting evidence was given before the Magistrate as to
whether the bank had been told of these arrangements. The

20

bank witnesses denying it, also denying there was any note
anywhere in the bank's records alluding to it. The point of
Mr Freeman's claim, of course, was that, while the bank might
be entitled to animals branded 0LQ on the offside ribs, it

was not entitled to animals branded 0LQ in other places. 30
The Magistrate was satisfied that the bank was never told
about this peculiarity connected with location of the brand
and I cannot interfere with that finding.
40
He also expressed a view that Mr Freeman was "the actual
controlling person and/or agent and in real terms the owner
of all cattle under the brand of OLQ and he, in fact, signed
the stock mortgage as owner of all cattle under that brand".
50
The Magistrate went on to reject any claim of ownership
other than that of the bank to any cattle with the brand
OLQ. The OLQ brand was registered to Mr Freeman. Also, it
was assigned to the bank under the stock mortgages. It is

JUDGMENT

15 60

21122002 rc&sdh (Robin QC DCJ)

difficult to see what entitlement Mr Freeman could have had to 1
brand cattle other than his and/or the bank's.
I am not attracted by the appellant's argument that to be
entitled to an animal, the bank must prove both the

occurrence of the brand on the animal and that it was owned by 10

Mr Freeman. Except in a situation, not this one, where the bank understands that the appearance of the brand on an animal
does not necessarily mean what it appears to, I think the
Magistrate was right in his conclusion that the branding of 20
the animal OLQ on the balance of probabilities indicates that
the bank has title.
Mr Gorman's argument in reference to Exhibit 26 items 39, 30
44, 45, 89 and 91 was that various special features of those
animals indicated they belonged to Zinace Pty Ltd. In the
first four instances, that had to do with ear tagging of the
animals - and at least in respect of 44 an additional brand
40
which appears to be TT7/8. Both 39 and 89 also had the brand
VPB which belongs to Zinace Pty Ltd having been acquired from
Mr Bjorklund. I agree with the Magistrate regarding the OLQ
brand as the appropriate discrimen. It is not useful to
inquire into the significance of ear tags or other indicia of 50
the history of those animals.
The Magistrate's main reason for his conclusion in favour of

JUDGMENT

16 60

21122002 rc&sdh (Robin QC DCJ)

the bank focused on Miss Green's evidence, she being, as we 1
call conceded, the only independent witness before the
Magistrate. She worked on the property from May to October
2000 through the week. So she was not there all the time.

She described to the Magistrate exercises in which cows with 10
calves were separated from their calves and the calves were
branded indiscriminately, or perhaps (to put it more
correctly), predominantly, if not totally, VPB, whether their
mothers were branded VPB, OLQ or anything else.
20
It was Mr Freeman's obligation under his stock mortgage to
ensure that progeny of OLQ cows were not dealt with in a
way which would deprive the bank of its title to them. I
think the Magistrate rather took the approach that, if 30
Mr Freeman was desirous of getting animals beyond the grasp
of the bank, he had to be punctilious about it and if he is
going to do that by use of brands, or moving cattle to
Mrs Williams's place or elsewhere, he must not trespass on 40
the bank's rights.
If Miss Green's evidence is accepted, it seems he did so.
The 101 cattle went off to Mrs Williams's place, more or
50
less on the eve of the appointment of receivers, the last on
the 1st of October 2000. I understand that there had been
deliveries in each of the three months before. A branding
exercise was described by Miss Green that she and, indeed, Mr

JUDGMENT

17 60

21122002 rc&sdh (Robin QC DCJ)

1

Freeman himself was engaged in, whereby the cattle to go to
Skeleton Creek were branded "VPB" on the near side rump. This
led to many animals bearing multiple brands. The Magistrate's

approach was to disregard any "VPB" brand on the near side 10
rump as an indicator of ownership of Zinace Pty Ltd and for
obvious reasons.
The contentious animals in the appeal remain those which had
20
an extraneous brand, alternatively, an indistinct or
illegible brand or no visible brand at all. It is in
respect of those that it seems to me the Magistrate erred.
The proper approach to claims under section 425 is that the
claimant should prove its title on the balance of 30
probabilities. There is no challenge by the bank to the
determination the Magistrate made that Zinace Pty Ltd was
entitled to 10 or so cattle. Zinace's challenge in this
appeal to the Magistrate's allocation of any animal branded 40
OLQ to the bank has failed.
There remain a small number of additional animals: the
Magistrate's determination was that, "All cattle branded
50
with the travelling brand of VPB on the near side rump and
(which) had no other brand thereon, which, in effect, were
unbranded prior to leaving Glastonvale, belonged to the
National Australia Bank."

JUDGMENT

18 60

21122002 rc&sdh (Robin QC DCJ)

1

The reference to "travelling brand" is one to the exercise I
have mentioned above in respect of which Miss Green's
evidence, importantly, went unchallenged. The Magistrate

10

had also determined that all cattle with indistinct and/or
not visible brands and cattle with a foreign brand other
than "VPB" being held at Skeleton Creek belonged to the
National Australia Bank. It is in this regard that I think

he erred. In effect, I think he relieved the bank from 20
having to satisfy the burden of proof and permitted it to
establish a title by default, as it were, because he did
not accept Mr Freeman's evidence.
30
The Magistrate did accept that Zinace Pty Ltd owned some
cattle. He did accept and had no option about it, having
regard to Exhibit 8, that in late 1999 Mr Bjorklund
transferred the brand "VPB" to Zinace Pty Ltd. He also had
40
before him in Exhibit 31 an invoice on Peter Bjorklund's
letterhead relating to "25 cattle less prodigy", payment of
$1,000 being required to a nominated Westpac Bank account.
There was also a stamped butt of the Westpac deposit slip
referring to that account and in the amount of $1,000. 50
It is said that Mr Freeman gave inconsistent versions of the
numbers of cattle acquired from Mr Bjorklund, that he made a

JUDGMENT

19 60

21122002 rc&sdh (Robin QC DCJ)

concession of sales involving him being at an undervalue. 1
The situation remains confusing on appeal. Apparently, a
boat of unknown value was part of the consideration that went
to Mr Bjorklund over and above the $1,000. It may have been

for cattle over and above the 25 mentioned in the invoice. 10
Indeed, that seems to be so. I am not troubled by the
invoice having been directed to Mr Freeman. Its date is
19th November 1999. The date of the deposit of the $1,000
was 25th November 1999.
20
It is not surprising Mr Bjorklund would see himself as
dealing with Mr Freeman personally, but commonsense tells me
that by this time Mr Freeman would be taking every step open
to him to acquire cattle through Zinace Pty Ltd and not in 30
his own name. The evidence shows he has taken the usual
defensive steps of people in his position of relinquishing
his directorship of Zinace in favour of his young son. It
is true, as Mr Perkins says, that the bank is in an awkward 40
situation, having no man on the spot. It is very much in
the hands of people like Mr Freeman and may count itself
fortunate that Miss Green's evidence was available.
50
Up against the background of my assessment that Mr Freeman
did avail himself of every opportunity to get cattle into
the ownership of Zinace, I feel persuaded that in respect of
the following items in Exhibit 26 he has succeeded. Those

JUDGMENT

20 60

21122002 rc&sdh (Robin QC DCJ)

1

are No.4 brand indistinct, No.9 brand illegible, No.14 brand
not visible, No.27 brand V5A, No.29 brand not visible, No.40
brand not visible, No.42 brand not visible, No.43 brand not
visible, No.73 brand not visible, and No.83 brand not visible,

10

and I would declare the appellant entitled to those animals.
The outcome does not seem to me too inconsistent with the
approach that Mr Perkins was suggesting to the Magistrate at

page 248 of the transcript. It was suggested that the 20
Magistrate, in his "discretion", "should decide of the young
beasts that clearly my client should have the majority of
them (being) entitled as owner to the majority of them.
What your Worship considers the majority is a matter for you 30
but I would suggest three-quarters, two-thirds, that sort of
figure."
The appeal succeeds to the extent I have indicated. I am just
interested in the horses. Do you want to say anything about 40
it, Mr Perkins? Is there anything in the stock mortgage or
bill facility?

MR PERKINS: I think the reference in the mortgage is only in the schedule.
HIS HONOUR: That's right.
MR PERKINS: Sorry, in the stock mortgage. That seems to be 50
the only reference.

HIS HONOUR: I thought it was cattle. I'm sorry I didn't think of this earlier, until I'm midway through the reasons; the evidence seems to be that the horses we're talking about were progeny of a horse that did have the OLQ brand.

JUDGMENT

21 60

21122002 rc&sdh (Robin QC DCJ)

MR PERKINS: That was Miss Green's evidence. 1
HIS HONOUR: That's Mr Freeman's brand.
MR PERKINS: That's right, yes.

HIS HONOUR: Isn't the question whether the bank ever intended to get security over anything other than cattle.

10

MR PERKINS: I can't answer that, your Honour, frankly at the moment and there wasn't any evidence about it. It was always presumed that that was the case.
HIS HONOUR: What, it was cattle.
MR PERKINS: No, it was also horses. But there's no
evidence about it. I don't have instructions to answer it

because it really was a presumption, I think, that all 20
parties made.
HIS HONOUR: Yes.
MR PERKINS: There was one other thing, and I don't know -

it was at left at the end - Mr Tomlin didn't give any evidence and it seems there's about 30 progeny of the hundred cattle and-----

30

HIS HONOUR: I was feeling my way towards that earlier in the day.
MR PERKINS: What your Honour's -----

HIS HONOUR: That's why I kept saying, "only 101"; it makes it easier if there are.
40

MR PERKINS: I'm told there's about 30 progeny. I think given the sort of summary nature of the jurisdiction, an order apportioning those in the same proportion that
effectively your Honour has done which I think-----

HIS HONOUR: Have you counted up, Mr Gorman, how many did you get out of 101?
MR PERKINS: 21. 50
HIS HONOUR: You've got a fifth.
MR GORMAN: A fifth, yes.
HIS HONOUR: Well, I'll take you up what you said to the
Magistrate. Give them a quarter.

JUDGMENT

22 60

21122002 rc&sdh (Robin QC DCJ)

1

MR PERKINS: Of the progeny?
HIS HONOUR: Of the progeny. That's a bit better than the third.
MR PERKINS: I think from all parties point of view-----

HIS HONOUR: I agree with that. 10

MR PERKINS: Yes. I am not going to debate that with your Honour.
HIS HONOUR: All right. Well, I'm very grateful for that.
So I will - I declare that the progeny should go a quarter
20
to Zinace. The rest to the bank. In the case of an uneven
number, I'll give Mr Freeman a Christmas present and direct
that there be rounding up in favour of Zinace.
MR GORMAN: Thank you, your Honour. 30
HIS HONOUR: Rather than cut an animal-----
MR GORMAN: Your Honour-----

HIS HONOUR: -----into bits. Provided Zinace gets a partial interest in progeny, it gets that one.
MR GORMAN: Your Honour, I'm unable to help like my learned 40

friend in regard to horses, but the clear evidence of she had-----
HIS HONOUR: But Mr - well, tell me what she said.
MR GORMAN: She said she had been told by Mr Freeman that
all the horses which were there were the produce of an
earlier horse----- 50
HIS HONOUR: Yes.
MR GORMAN: -----OLG.
HIS HONOUR: That's what the Magistrate went on.

JUDGMENT

23 60

21122002 rc&sdh (Robin QC DCJ)

MR GORMAN: Yes. 1

HIS HONOUR: And if you read the stock mortgage, it says that it comprise the horses, but if you look at the schedule, there'd never been anything in that other than cattle.
MR GORMAN: Yes.

10

HIS HONOUR: Let's say someone had found some sheep there, what would happen to them.
MR GORMAN: When I read it, I-----
HIS HONOUR: We don't brand sheep, of course. It doesn't matter, they're still livestock, Mr Freeman's livestock.

MR GORMAN: Yes. 20

HIS HONOUR: Let's say Mr Freeman had been able to do a great deal on a flock of sheep. He bought a hundred sheep and put them there.
MR PERKINS: It does on its terms apply to horses.
HIS HONOUR: I agree. 30

MR PERKINS: And I don't have any instructions to move from that position, your Honour, but as I say, I can't say - there was no evidence about a discussion about it at any time or intention.
HIS HONOUR: But you understand the point I'm making?
MR PERKINS: Yes, I do. 40

MR GORMAN: Yes. Under the 425 as was put to the under 425, you have a remarkable discretion-----
HIS HONOUR: Yes.
MR GORMAN: -----and we ask you to exercise it this
afternoon. We're extremely pleased with the results so far, 50
but we would like to get the horses out of the way.

I'm sure - well, it just may have done something for

HIS HONOUR: You've only got about a ninth of the way, but it's palm tree justice stuff, do you?

JUDGMENT

24 60

21122002 rc&sdh (Robin QC DCJ)

MR GORMAN: 425 allows that absolute discretion. 1
HIS HONOUR: Well-----
MR GORMAN: And I understand my learned friend's reluctance
under lack of instructions.

HIS HONOUR: So do I. 10
MR GORMAN: And I'm aware of my diary in the next few days.

HIS HONOUR: Let's just say, I'm proposing to decide that in the absence of any reference in any of the schedules to anything but cattle, that the intention that Mr Freeman and the bank shared was that only cattle should come under the stock mortgage. It's not capable of including a dog, is it?
20

MR GORMAN: No, I don't think you can describe a dog as livestock really.

HIS HONOUR: Well, is a horse livestock. That's a pretty - actually the old one - the old one referred to different sorts of animals, didn't it? Yes, it did. Sheep, cattle, horses and livestock - and livestock.
30
MR PERKINS: Sheep, cattle, horses.
HIS HONOUR: If he had a pig-----
MR GORMAN: Hens, ducks.
HIS HONOUR: An emu, a deer. So I'll indicate now an 40
intention to make a declaration that the horses go to Zinace
Pty Ltd as well, but I'll grant liberty to apply in respect
of the horses. So if you want to make a submission,
Mr Perkins, how long would you like? I want to get it out
50
of the way next week anyway.
MR PERKINS: Say by next Wednesday, your Honour.
MR GORMAN: Yes, that will suit me, your Honour.

JUDGMENT

25 60

21122002 rc&sdh (Robin QC DCJ)

HIS HONOUR: If you get liberty to - I mean, this could be 1
done in E-Court if people want to.

MR PERKINS: Yes, I'll have to take instructions and, of course, see if my client wants to make any submissions.
HIS HONOUR: That's right.

MR PERKINS: But I can certainly put the submissions in 10
writing through the E-Court. Next Wednesday-----

HIS HONOUR: If something comes in from you, you're authorised to do it that way and I'm not sure if we're going to get the response from Mr Gorman on the E-Court; my associate will ring him up.
MR PERKINS: Could I suggest I do it by next Tuesday and,
say, Mr Gorman respond by next Thursday so it can be 20
finalised by next week in any event.
MR GORMAN: I agree with that. That's fine.
HIS HONOUR: All right.
MR PERKINS: Thank you, your Honour.
MR GORMAN: There is another matter, your Honour. We're 30
successful on the appeal. May we have costs.
MR PERKINS: Well-----
HIS HONOUR: That's got to be divied up same sort of way.
MR PERKINS: They succeeded on, I think, 10 cattle out of
about 90. Not much of a success, in my submission. In 40
fact, my client, by the same token ought to ask for costs
because there's been an appeal about all of the cattle and
they've substantially failed. My client ought to have its
costs.
HIS HONOUR: I think I should order the respondent to pay a
quarter of the appellant's cost of the appeal to be 50
assessed. All right. I reserved the cost of the application
for security for costs. I don't know if you're instructed
to raise that, Mr Perkins, but in the end the bank had come

JUDGMENT

26 60

21122002 rc&sdh (Robin QC DCJ)

along too late. Mr Freeman was here on his own so there 1
won't be any costs there. But I reserved the bank's costs.

MR PERKINS: I don't have instructions on it and wasn't there on the days-----

HIS HONOUR: Did I reserve the costs until 1 November or 10
whenever you first came?
MR PERKINS: I think your Honour did.
HIS HONOUR: 30 October.
MR PERKINS: 1st of November. There is also an appearance
on the 1st of November which was the first occasion I
appeared. 20
HIS HONOUR: Yes, that's the one.
MR PERKINS: Which was when my client sought-----
HIS HONOUR: That's all about the stay.
MR PERKINS: Yes. 30
HIS HONOUR: The first one was ex parte.

HIS HONOUR: That order about a quarter of the costs will apply to the appellant's costs so far as they being reserved.
MR PERKINS: Thank you, your Honour.
40
HIS HONOUR: I mean, you were mad keen to sell these cattle.

MR GORMAN: I'm not sure I understand that, your Honour. I must have missed something.
HIS HONOUR: There's an application for a stay-----
MR GORMAN: Yes.
50
HIS HONOUR: -----which Zinace got.

MR GORMAN: Yes. And then we have the reserved costs from the 1st of November.

HIS HONOUR: That's when the bank came along wanting to the stay removed.

JUDGMENT

27 60

21122002 rc&sdh (Robin QC DCJ)

1

MR GORMAN: Yes.
HIS HONOUR: And I said "I'm not going to do that. Get the appeal on quickly instead."
MR GORMAN: How about the costs of this appeal, your Honour.

HIS HONOUR: You get a quarter of them. 10

MR GORMAN: And the other three quarters? I thought perhaps saying-----

HIS HONOUR: The bank has got to pay a quarter of your costs. You don't have to pay any of the bank's costs.
MR PERKINS: Thank you, your Honour.
20
HIS HONOUR: Order the documents provided on subpoena by
Creswick Lawyers, Exhibit A, be returned to that firm and
adjourn to a date to be fixed its application for costs of
production. 30

-----

40
50

JUDGMENT

28 60

Actions

Download as PDF Download as Word Document

Citations

Zinace Pty Ltd v Tomlin [2002] QDC 363

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0

and	1
NORMA PURSER Fifth Respondent
BRISBANE
..DATE 12/12/2002	10
JUDGMENT
20
30
40
50

HIS HONOUR: This is an appeal by Zinace Pty Ltd against the	1
determination by a Magistrate of Senior Constable Tomlin's
application under section 425 of the Police Powers and
Responsibilities Act 2000 for a determination as to what
ought to be done with 101 cattle and three horses which the	10
police had in their possession. That had come about because
Mr Lynton Freeman was the subject of a complaint by the
National Australia Bank that the cattle belonged to it under
a stock mortgage and had been stolen by Mr Freeman who was
20
the grantor under the stock mortgage. The matter got as far
as a jury trial and a successful outcome from Mr Freeman's
point of view.
He is presently the subject of a sequestration order which	30
has been stayed pending the outcome of an appeal to the Full
Court of the Federal Court of Australia. The bankruptcy
proceedings I would infer without having been exposed to the
detail of them are but a recent stage in a long-running	40
dispute between Mr Freeman, who was a grazier, and the bank.
It was a substantial lender to him and had security over his
cattle property Glassford Vale.
50
Difficulties were encountered by Mr Freeman in satisfying
the bank's financial demands. There have been multiple
Supreme Court proceedings which were preceded by a mediation

conducted by the late Mr Justice Douglas while he was still at	1
the Bar.
A collateral security taken by the bank when the principal

may be owned or purchased and all future increase and	30
progeny of all of the livestock".

1996. The schedule this time in six categories appears to	40
refer to 1,580 cattle branded 0LQ. There is a third stock
mortgage dated the 19th of December 1997, whose form
reflects that of the second rather than that of the first, in
which the number of "mortgaged sheep, cattle, horses and
50
livestock" is shown as "1,200 cattle being 500 breeders plus
700 mixed head". The brand appears as 0LQ.
One reason for the reduction in numbers is that sales

large number have gone missing in some way, given that only	30
101 remain. Those were located by the police on the property
of a Mrs Williams at Skeleton Creek. The Stock Squad caused
an experienced valuer to catalogue, describe and value those
101 animals. The document produced became Exhibit 26 before
40
the Magistrate in Constable Tomlin's application and was the
basis of the Magistrate's allocation of animals in his final
determination, in accordance with which Zinace Pty Ltd was
awarded 11 animals, being those "branded on the offside and
near side with VPB or on the offside only with a VPB".	50
The remaining cattle were determined to belong to the bank
and likewise, three horses. I think it may be necessary,

when I have finished delivering these reasons, to invite the	1
parties, if they wish to, to make supplementary submissions
about the horses which technically come within the stock
mortgages where horses are described. I think I am right in
saying that in the three schedules that have been produced	10
there has never been a reference to anything other than
cattle - giving rise to a question as to whether,
notwithstanding the language of the standard formal
documents, there ever was an intention to include horses in
20
the stock mortgage. There may be other documents in the
substantial quantity of exhibits the Magistrate had before
him which shed light on that possibly interesting question.
Zinace Pty Ltd, the appellant, came into the picture at a	30
time when Mr Freeman clearly was in a difficult, if not
diabolical, financial situation, particularly as against the
bank. It seems it may have been some joint venture vehicle
for an enterprise involving Mr Freeman and a geologist,	40
Mr Puce, focusing on minerals. More recently, I think it's
incontrovertible that the company has become involved in
purchasing, holding and perhaps selling cattle, I would
infer as a means identified by Mr Freeman by which he might
50
engage in his accustomed activities and support himself
and/or his family without needing to be concerned about
claims by the bank. Mr Freeman certainly would not be the
only person striking financial trouble who approached things

confusing smokescreen of evidence to gain the benefit to his	20
advantage (regarding) ownership of the majority of the
cattle (which) in fact belonged to the bank under the stock
mortgage."
30
In the proceeding before the Magistrate, the only claimants
to cattle were Zinace Pty Ltd and the bank. Each party
seems to have been given unfettered opportunity by the
Magistrate to present evidence through witnesses and as
40
documentary exhibits. The hearing lasted days and the
Magistrate's reasons suggest he gave careful consideration
to the evidence before him. I have striven to be careful in
this appeal to avoid generalisations which might be taken as
indicating what ought to happen in section 425 applications	50
and in appeals from the determinations that magistrates
make. It is a new area of jurisprudence, replacing the old
regime under section 39 of the Justices Act 1886 which no

longer applies to police officers.	1
I have been among those who doubted whether there was a
right of appeal under section 45 of the Magistrates Court
Act or section 222 of the Justices Act against a
Magistrate's determination. The Court of Appeal decision in	10
Ketchell v. Wynch, Appeal No 5994 of 2001, makes it clear,
through the expansive interpretation placed upon "action" in
section 45, that there is such an appeal as of right. It
also appears to follow from that Court of Appeal decision
20
that the UCPR provisions and rules 782 and following apply
in the appeal which, accordingly, is one by way of
rehearing. See rule 785(1) and rule 765. The Court tries
the matter again on the evidence below. The appeal by way
of rehearing is not a hearing de novo. I took the parties	30
to have agreed in that approach, so there is nothing for me
to decide.
Mr Gorman, appearing for the appellant, sought to adduce	40
further evidence in the form of multiple affidavits by
Mr Freeman. In the end, I have not had to have regard to
that material. I am doubtful that it would have been
appropriate to, in any event, since the fairly rigorous
50
tests for introduction of further evidence on appeal would
have to be satisfied. In my opinion, they were not. My
understanding of the "new" evidence is that, in large, it is
simply a restatement of assertions Mr Freeman has made

will be some in which perhaps because goods are perishable or	20
for other reasons, applications have to be dealt with
extremely urgently and in a relatively informal way. It may
be that an appeal offers not only the luxury of a more
leisurely hearing but also a proper occasion for the	30
examination of fuller evidence which may be more revelatory of
the truth of matters.
Before the Magistrate a transcript of parts, at least, of
40
the evidence given in the criminal trial became Exhibit 32.
Two different uses were sought to be made of that material.
The first was to discredit the evidence of Miss Green who
was called by the bank. The second was to expand on the
evidence of Mr Freeman by getting before the Magistrate	50
additional details which Mr Freeman, who gave evidence
before the Magistrate at considerable length, had previously
given before the jury. The Magistrate was invited to make

such use of Exhibit 32 in the closing address of Zinace's	1
counsel. I think it would have been open to he Magistrate
to use such material and I would not wish to say anything
against a course of avoiding the repetition of evidence by
use of transcripts of evidence that witnesses had given on	10
other occasions. That might often be productive of
economy. I am not sure that anything in this appeal
particularly turns on it, but it seems to me this was not a
case where the Magistrate was required to proceed in that
20
way.
As far as Miss Green particularly is concerned, there are
elements of unfairness in her not having been invited, when
she was cross-examined by Mr Wilson, to comment on what	30
seems to be the fact that she gave much more confused and
conflicting evidence before the jury. There is no way of
knowing whether the Magistrate took Exhibit 32 into account
in accepting, as he did, Miss Green's evidence. In this	40
appeal, I think the Court should proceed on the basis that
the evidence before him from Miss Green was acceptable and
accepted. I certainly do not think it is possible for this
Court, which has not observed the lady give evidence on any
50
occasion, to reject a favourable assessment of credibility
by the Magistrate, given the advantage he had in the way the
matter unfolded.

The first position of the appellant is that none of the	20
cattle belonged to the bank because the stock mortgages were
all invalid. The proposition in relation to the last stock
mortgage, which I think was advanced before the Magistrate
unsuccessfully, was that Mr Freeman was in such a state of	30
mind-----
MR PERKINS: Your Honour, might I interrupt. I have - I did see in the transcript that Mr Wilson expressly didn't put that.
HIS HONOUR: Sorry, thank you.
40
MR PERKINS: And I think I said he had, but I saw in the transcript - I said to my friend at lunchtime that he hadn't. He expressly said he wasn't relying on that.
HIS HONOUR: I will leave this exchange in the reasons.
It is a simple way to get things clear. Thank you.	50
Although there may have been no challenge before the
Magistrate on that basis, there has been a challenge to
associated to documentation by Mr Freeman in Supreme Court

proceedings. Those reached in the Court of Appeal in	1
National Australia Bank Limited v. Freeman 2001, QCA 473. I
am told there is an application for leave to appeal to the
High Court on Mr Freeman's part, also that the application
does not at present specifically relate to the third stock	10
mortgage. It has not been suggested that there is any
reason for this Court to delay a decision in the appeal
until it is known whether the High Court will entertain
Mr Freeman's appeal to it.
20
A challenge which has been made to the third stock mortgage
is that there is no consideration for it. Mr Gorman has
relied on some decisions of the Supreme Court of Victoria.
I will not delay now, but will in due course add references to	30
them. They are Elder, Smith and Company Limited v McKellar
(1895) 21 VLR 664 and Geddes v McDonnell (1896) 22 VLR 330.
While those decisions support Zinace's contention,
they are of no help, in my view, because Mr Perkins has been	40
able to point to evidence which clearly shows there was
consideration.
I refer to what has been called the "mediation deed" of the
50
4th day of December 1997, Exhibit 19 before the Magistrate,
which records the agreement the parties reached through the
auspices of Mr Douglas. Although it did not specifically
contemplate the stock mortgage, that instrument (which, like

As I understand Mr Gorman's argument, related to the	20
consideration point were arguments under the Bills of Sale
Act 1955 as amended. Section 7B had a place in the
legislation between 1992 and 1999, but it is no longer
there. I am unable to understand any basis on which it	30
could be irrelevant.
Reference is also made to section 12 under which a
registration under the Act expires after five years. As I
40
understand it, under the general principles that apply to the
Bills of Sale and Other Instruments Act 1955, arrangements
between parties have effect according to their terms. The
purpose of the Act is to regulate the situations of third
parties which I do not think there are present here in any	50
relevant way. The five-year period, in any event, would not
have lapsed in respect of the second stock mortgage. In

relation to it, as I understand it, the unsuccessful	1
consideration argument was also raised.
I have been unable to identify any basis on which the bank
is not entitled to its full rights as set out in the stock

its ability to rely on an earlier one. This is Australia	20
and New Zealand Banking Group Limited v. Steffen, Plaint 511
of 1993, judgment delivered upon a presently uncertain date
in 1995.
30
Mr Gorman made submissions (that would apply from the stage
now reached) that it is not sufficient for the bank to prove
that particular cattle are branded 0LQ for them to come
under the "bill of sale", or stock mortgage. The bank must
40
also prove those cattle belong to Mr Freeman, he submitted.
There was evidence before the Magistrate that within the
Freeman family, the brand was used to indicate which family
member was the owner of a particular animal by an appropriate
placement of the brand.	50
The Magistrate summarised Mr Freeman's evidence before him
as follows:

"I will endeavour to explain how the brand was used to	1
determine ownership of cattle on Glassfordvale according to Mr. Freeman -

1.	Lynton Freeman	OLQ on the off side ribs.
2.	Adam Freeman	OLQ on the off side on the rump.

4.	Norma Purser	OLQ on the neck or on the top of	10
the shoulder."

was not entitled to animals branded 0LQ in other places.	30
The Magistrate was satisfied that the bank was never told
about this peculiarity connected with location of the brand
and I cannot interfere with that finding.
40
He also expressed a view that Mr Freeman was "the actual
controlling person and/or agent and in real terms the owner
of all cattle under the brand of OLQ and he, in fact, signed
the stock mortgage as owner of all cattle under that brand".
50
The Magistrate went on to reject any claim of ownership
other than that of the bank to any cattle with the brand
OLQ. The OLQ brand was registered to Mr Freeman. Also, it
was assigned to the bank under the stock mortgages. It is

difficult to see what entitlement Mr Freeman could have had to	1
brand cattle other than his and/or the bank's.
I am not attracted by the appellant's argument that to be
entitled to an animal, the bank must prove both the
occurrence of the brand on the animal and that it was owned by	10
Mr Freeman. Except in a situation, not this one, where the bank understands that the appearance of the brand on an animal
does not necessarily mean what it appears to, I think the
Magistrate was right in his conclusion that the branding of	20
the animal OLQ on the balance of probabilities indicates that
the bank has title.
Mr Gorman's argument in reference to Exhibit 26 items 39,	30
44, 45, 89 and 91 was that various special features of those
animals indicated they belonged to Zinace Pty Ltd. In the
first four instances, that had to do with ear tagging of the
animals - and at least in respect of 44 an additional brand
40
which appears to be TT7/8. Both 39 and 89 also had the brand
VPB which belongs to Zinace Pty Ltd having been acquired from
Mr Bjorklund. I agree with the Magistrate regarding the OLQ
brand as the appropriate discrimen. It is not useful to
inquire into the significance of ear tags or other indicia of	50
the history of those animals.
The Magistrate's main reason for his conclusion in favour of

the bank focused on Miss Green's evidence, she being, as we	1
call conceded, the only independent witness before the
Magistrate. She worked on the property from May to October
2000 through the week. So she was not there all the time.
She described to the Magistrate exercises in which cows with	10
calves were separated from their calves and the calves were
branded indiscriminately, or perhaps (to put it more
correctly), predominantly, if not totally, VPB, whether their
mothers were branded VPB, OLQ or anything else.
20
It was Mr Freeman's obligation under his stock mortgage to
ensure that progeny of OLQ cows were not dealt with in a
way which would deprive the bank of its title to them. I
think the Magistrate rather took the approach that, if	30
Mr Freeman was desirous of getting animals beyond the grasp
of the bank, he had to be punctilious about it and if he is
going to do that by use of brands, or moving cattle to
Mrs Williams's place or elsewhere, he must not trespass on	40
the bank's rights.
If Miss Green's evidence is accepted, it seems he did so.
The 101 cattle went off to Mrs Williams's place, more or
50
less on the eve of the appointment of receivers, the last on
the 1st of October 2000. I understand that there had been
deliveries in each of the three months before. A branding
exercise was described by Miss Green that she and, indeed, Mr

approach was to disregard any "VPB" brand on the near side	10
rump as an indicator of ownership of Zinace Pty Ltd and for
obvious reasons.
The contentious animals in the appeal remain those which had
20
an extraneous brand, alternatively, an indistinct or
illegible brand or no visible brand at all. It is in
respect of those that it seems to me the Magistrate erred.
The proper approach to claims under section 425 is that the
claimant should prove its title on the balance of	30
probabilities. There is no challenge by the bank to the
determination the Magistrate made that Zinace Pty Ltd was
entitled to 10 or so cattle. Zinace's challenge in this
appeal to the Magistrate's allocation of any animal branded	40
OLQ to the bank has failed.
There remain a small number of additional animals: the
Magistrate's determination was that, "All cattle branded
50
with the travelling brand of VPB on the near side rump and
(which) had no other brand thereon, which, in effect, were
unbranded prior to leaving Glastonvale, belonged to the
National Australia Bank."

he erred. In effect, I think he relieved the bank from	20
having to satisfy the burden of proof and permitted it to
establish a title by default, as it were, because he did
not accept Mr Freeman's evidence.
30
The Magistrate did accept that Zinace Pty Ltd owned some
cattle. He did accept and had no option about it, having
regard to Exhibit 8, that in late 1999 Mr Bjorklund
transferred the brand "VPB" to Zinace Pty Ltd. He also had
40
before him in Exhibit 31 an invoice on Peter Bjorklund's
letterhead relating to "25 cattle less prodigy", payment of
$1,000 being required to a nominated Westpac Bank account.
There was also a stamped butt of the Westpac deposit slip
referring to that account and in the amount of $1,000.	50
It is said that Mr Freeman gave inconsistent versions of the
numbers of cattle acquired from Mr Bjorklund, that he made a

concession of sales involving him being at an undervalue.	1
The situation remains confusing on appeal. Apparently, a
boat of unknown value was part of the consideration that went
to Mr Bjorklund over and above the $1,000. It may have been
for cattle over and above the 25 mentioned in the invoice.	10
Indeed, that seems to be so. I am not troubled by the
invoice having been directed to Mr Freeman. Its date is
19th November 1999. The date of the deposit of the $1,000
was 25th November 1999.
20
It is not surprising Mr Bjorklund would see himself as
dealing with Mr Freeman personally, but commonsense tells me
that by this time Mr Freeman would be taking every step open
to him to acquire cattle through Zinace Pty Ltd and not in	30
his own name. The evidence shows he has taken the usual
defensive steps of people in his position of relinquishing
his directorship of Zinace in favour of his young son. It
is true, as Mr Perkins says, that the bank is in an awkward	40
situation, having no man on the spot. It is very much in
the hands of people like Mr Freeman and may count itself
fortunate that Miss Green's evidence was available.
50
Up against the background of my assessment that Mr Freeman
did avail himself of every opportunity to get cattle into
the ownership of Zinace, I feel persuaded that in respect of
the following items in Exhibit 26 he has succeeded. Those

page 248 of the transcript. It was suggested that the	20
Magistrate, in his "discretion", "should decide of the young
beasts that clearly my client should have the majority of
them (being) entitled as owner to the majority of them.
What your Worship considers the majority is a matter for you	30
but I would suggest three-quarters, two-thirds, that sort of
figure."
The appeal succeeds to the extent I have indicated. I am just
interested in the horses. Do you want to say anything about	40
it, Mr Perkins? Is there anything in the stock mortgage or bill facility?
MR PERKINS: I think the reference in the mortgage is only in the schedule.
HIS HONOUR: That's right.
MR PERKINS: Sorry, in the stock mortgage. That seems to be	50
the only reference.
HIS HONOUR: I thought it was cattle. I'm sorry I didn't think of this earlier, until I'm midway through the reasons; the evidence seems to be that the horses we're talking about were progeny of a horse that did have the OLQ brand.

MR PERKINS: That was Miss Green's evidence.	1
HIS HONOUR: That's Mr Freeman's brand.
MR PERKINS: That's right, yes.
HIS HONOUR: Isn't the question whether the bank ever intended to get security over anything other than cattle.

because it really was a presumption, I think, that all	20
parties made.
HIS HONOUR: Yes.
MR PERKINS: There was one other thing, and I don't know -
it was at left at the end - Mr Tomlin didn't give any evidence and it seems there's about 30 progeny of the hundred cattle and-----	30
HIS HONOUR: I was feeling my way towards that earlier in the day.
MR PERKINS: What your Honour's -----
HIS HONOUR: That's why I kept saying, "only 101"; it makes it easier if there are.
40
MR PERKINS: I'm told there's about 30 progeny. I think given the sort of summary nature of the jurisdiction, an order apportioning those in the same proportion that
effectively your Honour has done which I think-----
HIS HONOUR: Have you counted up, Mr Gorman, how many did you get out of 101?
MR PERKINS: 21.	50
HIS HONOUR: You've got a fifth.
MR GORMAN: A fifth, yes.
HIS HONOUR: Well, I'll take you up what you said to the Magistrate. Give them a quarter.

HIS HONOUR: I agree with that.	10
MR PERKINS: Yes. I am not going to debate that with your Honour.
HIS HONOUR: All right. Well, I'm very grateful for that.
So I will - I declare that the progeny should go a quarter
20
to Zinace. The rest to the bank. In the case of an uneven
number, I'll give Mr Freeman a Christmas present and direct
that there be rounding up in favour of Zinace.
MR GORMAN: Thank you, your Honour.	30
HIS HONOUR: Rather than cut an animal-----
MR GORMAN: Your Honour-----
HIS HONOUR: -----into bits. Provided Zinace gets a partial interest in progeny, it gets that one.
MR GORMAN: Your Honour, I'm unable to help like my learned	40
friend in regard to horses, but the clear evidence of she had-----
HIS HONOUR: But Mr - well, tell me what she said.
MR GORMAN: She said she had been told by Mr Freeman that
all the horses which were there were the produce of an
earlier horse-----	50
HIS HONOUR: Yes.
MR GORMAN: -----OLG.
HIS HONOUR: That's what the Magistrate went on.

MR GORMAN: Yes.	1
HIS HONOUR: And if you read the stock mortgage, it says that it comprise the horses, but if you look at the schedule, there'd never been anything in that other than cattle.
MR GORMAN: Yes.