Westbury Thoroughbreds Limited v Webster

[2012] NZHC 993

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2011-404-005886 [2012] NZHC 993

BETWEEN  WESTBURY THOROUGHBREDS LIMITED

Plaintiff

ANDMARGARET MARY-JEAN WEBSTER (ALSO KNOWN AS MARGARET WATSON)

Defendant

Hearing:         5 March 2012 and 4 May 2012

Appearances: P T Finnigan for the Plaintiff

N Carter for the Defendant

Judgment:      11 May 2012

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

11.05.12 at 4:30pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

……………

Solicitors/Counsel:

P Finnigan, Barrister, Auckland –  [email protected]

N Carter, Carter & Partners, Auckland – [email protected]

WESTBURY THOROUGHBREDS LIMITED V MARGARET MARY-JEAN WEBSTER (ALSO KNOWN AS MARGARET WATSON) HC AK CIV 2011-404-005886 [11 May 2012]

The summary judgment claim

[1]      The  plaintiff  applies  for  summary  judgment  to  recover  fees  for  stallion services ($101,200), and agistment care ($197,454.19) for services/care provided in the 2009 and 2010 service years.

[2]      As well contract interest is claimed.

The plaintiff ’s evidence

[3]      Specific written contracts were entered into for each of the stallion services provided.

[4]      Each contract provided:

1.        The name of the owner of the stallion.

2.        The name of Ms Watson as owner/lessee of the mare.

3.The amount of service fee payable, requiring that to be paid on or before 1 June in the year following the season in which the service was provided.

4.A two per cent interest charge per month was payable for service fees paid late.

5.The stallion owner had a right to exercise a lien over the mare and progeny in respect to the payment of outstanding fees with the power to sell same in order to recover outstanding fees.

6.The stallion owner was to endeavour to provide the availability of the stallion and all care, good husbandry and attention to the mare and/or her progeny but was not be liable for any temporary or permanent unavailability of the stallion for any

reason whatsoever nor for any negligent act or any loss, damage or claims of whatsoever nature or howsoever arising while under Westbury stud care or the control of its servants or agents or arising following actions taken under clause 4.2 hereof. (Clause 4.3)

7.The mare owner authorised the stallion owner, its contractors and/or the stud veterinarian or any employee of either to administer such treatments, examination, procedures and operations as they, in their absolute discretion prescribe. (Clause 4.2)

[5]      It is this latter contractual provision which Westbury has utilised to charge for agistment services.  Mr Warwick of Westbury explains:

... Westbury takes custody of the mare in preparation for having her served by the stallion.  Following service, the mare remains at Westbury until it is certified to be in foal.  That usually takes 45 days from service.  The reason is because of live foal guarantees which Westbury provides as part of the service contract.   It is not usual for a mare-in-foal to remain at Westbury after the 45 days certificate is given, though it happens.  In the case of Ms Watson, the situation was unusual.  I have already deposed to why Westbury kept her mares prior to stallion servicing; afterwards and then following foaling together with the mare’s progeny as Ms Watson advised that she did not have the records at her facilities.

Westbury does not usually enter into any separate written agistment contract with  an  owner.    Pursuant  to  clause  4.2  of  each  contract,  Ms  Watson authorised Westbury to carry out to the mare and progeny of Ms Watson such treatments, examinations, procedures and operations within Westbury’s discretion.

Pursuant to clause 4.3 of every contract Westbury covenanted to Ms Watson to provide all care, good husbandry and attention to the mare and progeny of Ms Watson whilst in Westbury’s care.

[Paras 9 – 11, third affidavit.]

[6]      Mr Warwick stated that any owner bringing a mare for service knows that Westbury cares for the mare and progeny and that there will be an agistment charge and also various related treatments such as provided for by clause 4.2.

[7]      Mr  Warwick  stated  that  Westbury  sent  out  a  statement  and  supporting invoices each month that enabled a mare owner to query a charge.   He said Ms Watson, to his knowledge, never queried a cost since the commencement of Westbury’s care of her mares and progeny.  He stated:

By her acceptance of Westbury’s charge-outs, since 2008, Ms Watson has represented to Westbury that Ms Watson accepts the charging as reasonable...

[8]      Mr Warwick said  Ms Watson  paid  amounts  in  reduction  to  her account. There was no stipulation what the sums were to be applied to.  Rather, the amounts were treated as reducing her total indebtedness to Westbury.   He said Westbury accepted that the 2009 service contract fees had been paid and therefore it is only the

2010 service contract fees, due on 14 June 2011, which have not been paid, and upon which the two per cent interest charge has accrued.

[9]      Westbury, through Mr Warwick, has provided copies of such service contracts with Ms Watson, it retains.  Most of these are dated 14 October 2010 or 28 October

2010.  As well, copies of agreements dated 18 September 2010 and 16 March 2011 are also provided.

The defendant’s case

[10]     Ms Watson pleads it was an agreed oral term of each service agreement and of the oral agistment agreements that Westbury would be paid after the mare was foaled and was subsequently sold, which could occur up to nearly two years later.

[11]     In her defence of these claims Ms Watson pleads that in or about August 2008 (that is before the written service agreements) the parties entered into an oral agreement(s) in respect of agistment services in respect of 11 mares.   Ms Watson said the number of mares which required agistment subsequently increased and in September 2009 she entered into a further oral agistment agreement.  She says from October  2008  onwards  the parties  entered  into  various  written  and  oral  service agreements.  She claimed it was agreed that there would be no charge for agistment in 2009 for three of the mares and for the rest at $8.00 plus GST per day and that she would be charged at $12.00 plus GST from 1 January 2010 onwards.

[12]    Ms Watson denies Westbury with her consent, retains a number of her bloodstock pending full payment for expenses and charges for the agistment and stud services performed after 30 September 2011.  In short she denies Westbury’s right to claim to hold her bloodstock as collateral.  She says she asked for the return of all bloodstock from 1 November 2010 but that Westbury has wrongfully refused to release it and is not entitled to charge for agistment services from that date onwards.

[13]     She deposed:

(a)      She through her solicitors tendered all monies owing for service fees on three mares, amounting to $16,675.00 on or about 16 August 2011 however her cheque was returned, and only subsequently was she advised that refusal occurred because interest was not added to the tender amount.

(b)That she and Westbury entered into two written stud share agreements for shares in horses named Red Giant and Swiss Ace, on or about 15 and 30 June 2010 respectively.

(c)      It was a term of each agreement that she would be entitled to one free stud service per year.

(d)That whilst Westbury wrongly retained possession of her three mares, she directed these mares be serviced by Red Giant or Swiss Ace but in breach of those agreements she says Westbury declined to arrange the servicing

(e)      By her calculation she has suffered losses amounting to $120,000 because her mares were not made available for servicing while Westbury  purported  to  exercise  a  lien  over  them  because  of  fees alleged to be owing.

[14]     In summary Ms Watson opposes the claim for summary judgment because:

1.She denies any obligation to pay agistment charges from November 2010 when Westbury refused to return all of her mares and foals.

2.        The agreed rate for agistment was less than Westbury claims.

3.Clause 4.3 of the agreements does not enable Westbury to charge for agistment (nor husbandry) services, but is rather an exclusion of liability clause.

4.There is no lien available over the mares and their progeny under any agistment agreements.

5.Contrary to promises that her horses would be released to her if a sum in the range of $60,000 - $70,000 was paid, she made a payment in June 2011 of $67,790 but Westbury refused to release her stock.

6.Westbury has failed to provide credits in respect of certain payments made totalling $34,384.53. Also she says her payment of $4,130.89 (out of a total of $8,000 paid on 26 July

2011) was wrongly applied instead of being credited to monies owing on outstanding service fees.

[15]     In her evidence Ms Watson deposes:

1.In about August 2009 she had discussions with Kristelle Ellice, the nominations manager of Westbury in respect of agistment for her mares. Subsequently she entered into separate written service agreements in respect of stallion services.

2.In all of her contractual discussions with Westbury she advised she did not have the cash to pay for the service fees nor for agistment.  She said this was discussed at various meetings she had with Ms Ellice and with Mr Warwick at Westbury in

August and September 2009.  She said she advised them she did not have the resources.  She said it was verbally agreed with Mr Warwick that she would not have to pay for agistment nor service fees until she was able to sell her foals.

[16]     When provided with written service agreements by Ms Ellice in or around October 2009 she said she initially refused to sign them because of the lien clause. Eventually she signed them but only after Ms Ellice confirmed her payment was not expected until foals were sold.

[17]     She notes that service fees are not due until the start of the following season which is approximately a year later.   Foals are not normally sold until they are weaned.  Some foals become yearlings before they can be sold.

[18]     Despite  their  agreement  she  says  Westbury  have  incorrectly  charged agistment fees for 2009 and says she should be liable for agistment fees to the end of January 2011 at the latest as that is when she asked for the last of her mares back.

[19]     She was aware that the written service contracts contained a lien provision but until November 2010 Westbury had not exercised this – she says because of their agreement otherwise.

[20]     She said in August or September 2010 Mr Warwick convinced her to have her mares serviced again at an approximate cost of $100,000.  She again told them she could not afford to pay.  She said they proceeded on the same basis as previously i.e. that she would pay when she sold her foals.  On 1 November 2010 she spoke to Mr Warwick who advised her he was under pressure from Westbury’s head office in Sydney for her debt to be reduced, and from this time Westbury refused to release her  horses,  and  have  charged  agistment  fees  which  she  believes  she  is  not responsible for.

[21]     Subsequently and gradually Westbury released her mares except for her three most valuable ones.

[22]     She said in late February 2011 Mr Warwick said that if she paid $50,000 -

$60,000 he would release all mares and foals.  She then paid $40,340.30 on 1 March

2011 and a further $10,000 on 15 March 2011 from the sale of foals.   He later responded that Sydney required more and he said that he wanted $60,000 - $70,000 to release the horses.  Eventually she paid an additional $19,975 but Westbury still refused to release her horses.  Presently the three mares are still being kept from her.

[23]     Upon her review of Westbury’s invoices she believes that credits are due to her for deduction from the amount claimed.   In each instance she has provided reasons.

[24]     On 16 August 2011 she tendered $16,675.00 for the release of her remaining horses, but the cheque was returned.  For this reason she believes Westbury has no entitlement to claim agistment fees from that time, if not earlier when in February she agreed to pay the sum Mr Warwick indicated would be sufficient to secure the release of the mares.

[25]     Concerning her counterclaim she says that on 15 June 2010 Westbury sold to her  shares  in  Red  Giant.    The  purchase  price  for  her  two  per  cent  share  was

$33,000.00.  She advised she could not pay that sum.  She says she was informed by Mr Warwick that she could pay a third upfront with the balance over two years.  She agreed to this.  She paid $11,250.00.  She said this entitled her to one free service per season.  Red Giant was mated with one of her horses and she says therefore she does not owe anything by way of service fees on that mare.

[26]     A couple of weeks later she agreed to purchase a two per cent share in Swiss Ace.   Again she paid  a third upfront on the same understanding as previously. Although entitled to a free service her mares have not been mated with Swiss Ace.

[27]     She estimates her losses at $120,000.

Westbury’s response

[28]     It says:

(a)       Ms Watson should have permitted Westbury to sell her mares and for the proceeds to be applied in reduction of her debt.

(b)That Ms Watson orally agreed to provide Westbury with a lien over all her bloodstock.

(c)       Even on Ms Watson’s claims regarding agistment charges payable it is

calculated she would owe more than $26,000.00.

(d)Ms Watson did not pay the first instalment due under the Swiss Ace agreement.

(e)       Westbury is not a party to the instalment agreements and is merely the manager under the co-ownership agreements.

Summary of the parties’ positions

[29]     The plaintiff claims the right to sue under service contracts entered into between the owners of stallions on the one hand, and Ms Watson on the other.   It claims those agreements provide a contractual basis for Westbury to charge both service fees and agistment fees.  It says those agreements permit the stallion owner to exercise a lien for payment of all outstanding fees including a right to sell the serviced  mare  and  any  progeny of  that  mare  to  recover  those  outstanding  fees including fees in connection with the provision of “all care, good husbandry and attention to the mare and/or her progeny”.

[30]     Ms Watson does not deny there was a written contract for the provision of stallion services.  She acknowledges having incurred a liability to pay those except she claims there was an agreement that such fees would not be payable until her mare’s foals were sold.

[31]     Ms Watson does not agree that the written services contract provided the basis for Westbury’s claims for payment of agistment fees.  These agistment fees she says were the subject of an oral arrangement which was in place long before the written service fee contracts were entered into.

[32]     Ms Watson denies a right of lien existed for payment of agistment fees but if such right did exist then agistment fees could not be claimed from that time in February 2011 when an arrangement was struck for a return of her mares, or at latest in August 2011 when she completed payment in terms of that arrangement.

Adjournment of hearing part heard

[33]     Initially  the  matter  was  set  down  for  one  day  on  5  March  2012.    The plaintiff’s casebook of pleadings included seven affidavits sworn by Westbury’s Mr Warwick.    Some  of  these  were  very  lengthy.    They  contain  a  rejection  of  Ms Watson’s account of contractual arrangements.  Perhaps unsurprisingly by the end of that day on 5 March Mr Carter had not completed submissions on behalf of the defendant.

[34]     The matter was adjourned to, and was completed on, 4 May 2012.

[35]     On 7 March  2012  I issued a minute to  counsel in which  I provided  an overview of the Court’s impressions regarding the plaintiff’s case.  I queried whether the evidence showed that Westbury had a right to sue under the service contracts.  I noted that there was a factual dispute regarding Westbury’s claims for payment of agistment fees.

[36]     I noted that in relation to the service agreements, Ms Watson had at earliest raised a defence of ‘pay when paid’ in about August 2011 and that before then there had been significant communications between the parties wherein the debt due was identified but no defence to it was raised.

[37]     But, I also said that the defence was not entirely without traction because Ms Watson claimed an oral pay when paid agreement had been entered into before the written contracts being signed; that Westbury was aware of her financial position and inability to meet fees and were aware of her poor equity position even before 2011.  I also noted that Westbury encouraged Ms Watson to have mares serviced for the 2011 year despite her then still owing significant fees.  Also, it appears Westbury were

involved in encouraging Ms Watson to purchase shares in the two stallions which she agreed to do.

[38]     I commented that it did not seem to me that the service contracts contained the agreement for the provision of agistment services.

[39]     Commenting upon Ms Watson’s counterclaims.  I said that at best and for the reasons she advised, she could claim a credit of no more than about $7,000.  As to her pay when paid I noted there may be reason to challenge her position from a viewpoint of commercial reality.

[40]     I  noted  in  relation  to  the  lien  dispute  that  a  significant  portion  of  the agistment  charges  claimed  comprised  fees  charged  beyond  that  date  when  Ms Watson asked for her mares to be returned to her in November 2010 and again in February 2011 and I noted that the only reason (at least the only reason then before the Court) as to why the sum of $16,750.00 that was tendered through her lawyers in August 2011 for the release of her remaining mares was that it did not include interest of a two per cent penalty charge of a sum identified as $483.00.

[41]     I queried with Mr Finnigan the rights of Westbury to claim agistment charges from that time Westbury exercised its lien because from that time those charges were being incurred for the purposes of the lien being enforced, and not on behalf of Ms Watson as owner of the mares in question.

[42]     On 12 April 2012 Westbury filed an interlocutory application to add parties as plaintiffs to the summary judgment application.  In my minute to counsel dated 17

April 2012 I noted:

In support [of the interlocutory application to add parties] was filed a further affidavit from Mr Warwick of  the  plaintiff.   Attached  to Mr Warwick’s affidavit is a copy of an intended third amended statement of claim.   It is different from the statements of claim already filed in that there are five named plaintiffs instead of just one as previously.   The new document contains 84 paragraphs of pleading over 25 pages.   By comparison its predecessor contained 26 paragraphs of pleading over 9 pages.

[43]     I  then  noted  with  respect  to  the  submissions  filed  in  support  of  the application:

In total the papers filed by the plaintiff in support of the application for joinder of additional plaintiffs numbered 57 pages, exclusive of counsels’ submissions.

[44]     My minute included the following by way of conclusion:

In the circumstances the Court is not prepared to consider the application for joinder until and if in the outcome of the part heard summary judgment application the Court rules in part or in whole against the application for summary judgment.

[45]     I then outlined my reasons for refusing to expand the summary judgment hearing beyond that which was apparent when the hearing began.

[46]     Before the matter was resumed on 4 May 2012 the Court received further affidavits from Mr Warwick for Westbury and from Ms Watson.  As well the Court received an application from the plaintiff that Ms Watson’s affidavit not be read. And so it was that when the matter was recalled the first matter for consideration concerned  the  contents  of  Ms  Watson’s  new  affidavit.   As  to  that  I ruled  that evidence of correspondence between counsel since the hearing was adjourned on 5

March 2012 ought not to be read for it ought to be considered in the context of without prejudice communications between lawyers.   However I did  permit Ms Watson’s  evidence,  previously overlooked  by  her,  wherein  she  claims  she  gave instructions to Westbury to apply a payment she had made for credit to payment of service fees and not, as was done, in payment of agistment fees.

Considerations

Service Contract

[47]     Each is distinct.  There are four in total, one for each of the four syndicate owners of the four stallions concerned.

Librettist

[48]     The  contract  notes  it  is  between  Westbury  in  conjunction  with  Daley

Australia Pty Limited, and M Watson. Westbury owns Librettist.

[49]     It  notes  that  Westbury  Stud  has  agreed  to  accept  Ms  Watson’s  mare

Westmeath for service to Librettist upon the following terms and conditions:

4.3Westbury Stud shall endeavour to provide the availability of the stallion and all care, good husbandry and attention to the mare...

6.        Lien and Power of Attorney

It is an express condition of this agreement and any agreement of the Westbury stud to agist the mare and/or her progeny, that Westbury Stud shall be entitled to retain possession of the mare and/or her progeny and/or documents relating to same as a lienor against all persons for the payment of all outstanding fees and further Westbury Stud shall have a pledge over the mare and/or her progeny under which pledge Westbury Stud shall have the power to sell and give good title to the mare and/or her progeny to a third party purchaser in respect of which any outstanding fees owing.

[50]     Westbury submits this is an express agreement to agist (cl 4.3) and envisages in  that  agreement  that  Westbury may  retain  a  lien  for  the  purpose  of  ensuring payment of all outstanding fees i.e. not just service fees.

Cecconi

[51]     It notes that under clause 4.3 that the Cecconi syndicate “shall endeavour to provide the availability of the stallion and all care, good husbandry and attention to the mare...”.

[52]     It also provides:

6.        Lien and power of attorney

... the Cecconi syndicate shall be entitled to retain possession of the mare and/or her progeny and all documents relating to same as a lienor against all persons for the payment of all outstanding fees and further the Cecconi syndicate shall have a pledge over the mare [with] power to sell and give good title to [same]...

[53]     Westbury is a shareholder in the ownership syndicate but there is no reference to Westbury in the contract.

Captain Reo

[54]     The service contract conditions are the same as for the stallion Cecconi in that there is no reference in it to Westbury providing ‘all care, good husbandry and attention to the mare’.   Nor is the power of lien retained other than by the owner syndicate.

Faltaat

[55]     Likewise as with the owners of the stallions Cecconi and Captain Reo the best endeavours obligation to provide all care “good husbandry and attention to the mare” remains with the owners.  Likewise a right of lien is reserved to them.

[56]     It  is  clear that  it  is  only directly in  their  Librettist  contract  is Westbury reserved the right to claim for service fees owing.

[57]     Also, it is clear that the claim for a two per cent interest penalty rate for late payment of agistments relies upon the provision in those written contracts permitting the charge of same albeit that in the contracts concerned the obligation to pay such charge is clearly confined to the non payment of the service fee.

Agistment charges

[58]     Westbury asserts that pursuant to the provisions of the service contracts it has a right to sue for these and to claim also an entitlement to two per cent interest per month for late payment.

[59]     The evidence discloses Ms Watson accepted a responsibility to pay agistment charges.  She could not contend otherwise.  She has acknowledged her responsibility for these.  Clearly there is an obligation to pay for the cost of care and usually that is calculated on a daily basis.   The charge increases when the mare’s foal reaches a certain age.  In this case the evidence is that Ms Watson’s mares or some of them

were in the care of Westbury well beyond that period when agistment charges were usually incurred.  In some cases mares and progeny were not returned to Ms Watson because she had no ability to care for them herself.  She incurred the obligation to meet that cost.  She does not deny it.  She says because of her oral agreement with Westbury the obligation for payment did not arise until, in effect, she could afford it following the sale of foals.

[60]     Westbury insists the right to claim agistment charges arose by virtue of the conditions of the service contracts.

[61]     It is clear this did not occur by virtue of any service agreement except in the contract for the stallion Librettist.   In that contract Westbury was the contracting party.  It was not the contracting party in any of the other contracts.  The fact that in relation to the contract for the stallion Cecconi Westbury was a shareholder in the owners syndicate does not assist it either.   Ms Watson’s obligations lay with the owners. Westbury was only one of those owners.

[62]     In respect of the stallions Cecconi and Captain Reo, Westbury entered into its own contract  with  the owners to  provide that  same “care,  good  husbandry and attention” that the stallion owners had contracted to provide.  The fact that Westbury contracted with the owners does not, in the absence of other evidence to the contrary, provide Westbury with appropriate authority to sue for recovery of any fees at all.

[63]     Also the clear evidence is there was an independent arrangement between Westbury and Ms Watson in connection with agistment charges.   That evidence suggests the arrangement had been in place from as early as 2008.  That evidence may be subject to challenge but it is clear there were arrangements in place for agistment care, well before written agreements with stallion owners were concluded.

[64]     Mr Finnigan submits arrangements of the kind claimed by Ms Watson i.e. pay when paid, are commercially improbable.  They may be, but Ms Watson does not deny her liability for payment; she says there was an  arrangement for deferred payment.

[65]     Balanced against considerations of commercial practice are facts suggesting it was Ms Watson who was approached by Westbury in the first place regarding the availability of their services.  The clear evidence is Ms Watson was probably without means of income or assets to fund the considerable commitment she was invited to undertake.

[66]     Westbury claims Ms Watson encouraged them to believe she had the means to meet the commitments involved.   On the other hand it is arguable insufficient enquiry was made regarding those claims.   Also, it is clear she had no means to service any debts save from her ability to trade in the bloodstock she had and the foals that would ultimately provide any capital.

Lien

[67]     Rights of lien arose from the terms of individual contracts.  A right of lien in favour of Westbury created by the Librettist contract did not permit Westbury to exercise that lien except in relation to fees owing under the Librettist contract.  The reference in the lien clause was clearly confined to “all outstanding fees” under that service contract.   It did not avail Westbury of a right to exercise a lien under any contract except in relation to the services provided to the owners of Librettist.

[68]     It  is  clear  that  those  considerations  of  a  right  of  lien  were  the  basis  of Westbury’s refusal to accept the sum of $16,750.00 for the release of Ms Watson’s mares.   Westbury was at the time asserting a right to claim a lien over all of the mares and not just those serviced by Librettist.  Also and until Ms Watson tendered the sum of $16,750.00 to release her three mares the evidence suggests that no demand had previously indicated a charge of two per cent interest.  As previously noted demand had not been made for this extra cost and it was only notified after tender was paid.

[69]     But,  the  situation  is  more  complex  than  that.    Each  month  Ms  Watson received a running account of what was due.  When she made payments Westbury decided how those should be applied in payment of outstanding fees to syndicate owners and in respect of Westbury’s charges for agistment care provided to the

mares serviced by the particular stallions.  In short, Westbury decided which owners’ account was paid and in respect of agistment services provided, which account (on behalf of the mares concerned) would be credited with the payment made.

[70]     Westbury defends the process and that is understandable.  Apparently it has endured for many years.  It has not been questioned.  Ms Watson did not question it. It was part of industry practice.  But, in the context of this case it may need to be questioned.  Arguably the contract for payment of agistment fees is not contained in the  contracts  for  service  fees.    Arguably  it  is  contained  in  an  oral  agreement. Arguably there is nothing but industry standard or practice to prove the requirement for payment of penalty interest.  The right to exercise a lien to retain stock for unpaid fees needs to be identified by reference to the parties’ arrangement and in this case that seems uncertain because the contract for provision of agistment fees is only clearly defined in connection with the stallion Librettist.   Because of the apparent discretion available to Westbury to allocate payments for services to particular stallions issues will arise regarding Westbury’s practice of crediting payments to a general account for fees owed for agistment services provided in connection with the service fees charged for a number of stallions.

[71]     It means that at any time if there is a debt due it is due in respect of the general account.  It is not a readily identifiable debt owing in respect of agistment services for a particular mare serviced by a particular stallion.   It is an important consideration in this case because it is only in respect of the Librettist mares that arguably there is a written contract for the provision of agistment fees and for the right of lien that follows.

[72]    The situation is confusing, as undoubtedly is my attempt to explain it. Westbury’s perception of its rights accounts for the reasons why it now argues that it was lawful to reject a tender not only for the unpaid interest but also because there were  service  fees  outstanding,  notwithstanding  that  the  element  of  outstanding service fees had not been a factor that had previously been indicated as a requirement for the release of the mares.

[73]     It appears to the Court there is confusion not only in identifying the right of lien but also in this case the justification for its exercise.  In this case Westbury have maintained a right to hold onto Ms Watson’s mares because of unpaid fees.   Ms Watson claims that as early as November 2010 she requested her mares back. Arguably since then Westbury have maintained a right to hold onto Ms Watson’s mares  because  of  unpaid  fees.     I  have  already  identified  the  difficulty  in understanding the basis for calculating the fees due in respect of the mares concerned or the basis upon which a right of lien was claimed.

[74]     It will be a matter for evidence in due course but it is arguable at this time that agistment costs incurred after the lien was exercised become the responsibility of the lien holder and not the property owner.

[75]     Mr Finnigan submits the right of lien provided a pledge to enable the sale of stock.  But, the lien holder has not in this instance exercised that pledge right and questions may be asked why not  when instead  the lien holder has  asserted the property owner has a continuing obligation to meet care and good husbandry costs.

[76]     Ms Watson has made counterclaims, in part connected with a challenge to the extent of agistment claims, but in part also because of what she now claims (as opposed to what she initially claimed, was the loss of opportunity for her mares to be serviced and for foals to be produced which could have been sold for what Ms Watson claims could reasonably have been expected.

[77]     Initially those claims were based around her arrangement to purchase shares in two stallions for which her mares were to receive free services.  Latterly that claim has been described as a claim for compensation because of Ms Watson’s inability to arrange service by stallions.   Time will tell whether there is merit in these counterclaims.

[78]     Although in the outcome her other counterclaims will reduce the claim for agistment fees by a relatively small sum it should not be the task of this Court upon a summary judgment application to measure the extent of those or to rule upon them. Besides, all counterclaims are denied by Westbury.

[79]     The initial concern is to establish the amount of fees owing and upon what basis they are payable.  That is best left for trial, the presentation of evidence and argument upon it.  In that outcome Ms Watson’s counterclaim can be assessed.

Summary

[80]     It could be considered in this review of matters that at worst Westbury should succeed  with  a  claim  for  service  fees  and  agistment  charges  provided  by  the Librettist contract.  In the Court’s opinion it is not appropriate to try and isolate or identify a particular amount for which judgment should be awarded.   Summary judgment is about the plaintiff proving the absence of a defence.  In this case and in relation to the Librettist contract issues have arisen with respect to agistment claims concerning  the  stallions,  which  in  this  Court’s  opinion  are  not  sustainable  by reference to the particular service contracts concerned.

[81]     Also, a right of lien has been asserted in connection with mares not related to the Librettist contract, and for agistment fees likewise.  It calls into question the right to claim agistment charges pursuant to the terms of service agreements.

[82]     Ms Watson’s account of a pay when paid condition seems improbable, and commercially unacceptable.   But, there was a lot that was or ought to have been known about Ms Watson’s financial situation when she was contracted to pay for those services.  It is a matter for further evidential enquiry.

[83]     Arguably  there  was  no  separate  written  contract  for  the  provision  of agistment services. There should have been.

[84]     Mr Warwick swore at least eight affidavits for the summary judgment matter. That gives an indication of the factual complexity involved.  Answers to issues are not readily identifiable by reference to written documentation.

[85]     There  are  material  areas  of  conflict  which  are  not  resolvable  upon  the documents nor by reference to argument about logic or commercial reality.

[86]     Notwithstanding Ms Watson’s argument of a pay when paid obligation it is clear she has a debt for the provision of service fees and for agistment fees but the extent of those is too difficult to attempt on the basis of evidence provided by affidavits.  It should be left for trial.

Decision

[87]     The summary judgment application is dismissed.  It is not appropriate in the circumstances to fix costs.  They will be left for determination in the resolution of

this proceeding.

Associate Judge Christiansen