Big Top Hereford Pty Ltd v Gavin Thomas as Trustee of the Bankrupt Estate of Douglas Keith Tyler

Big Top Hereford Pty Ltd v Gavin Thomas as Trustee of the Bankrupt Estate of Douglas Keith Tyler - [2006] NSWSC 1159 - NSWSC 2006 case summary — Zoe

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4904/06 Big Top Hereford Pty Limited v Gavin Frederick Crichton Thomas JUDGMENT 1 HIS HONOUR: For many years Mr Doug Tyler has bred Hereford cattle, on traditional English bloodlines, on two adjoining properties formerly owned by him, known as Big Top and Home Farm, at Tyringham near Dorrigo in north eastern New South Wales. By the early 2000s he had a herd of about 600 to 700 cattle. When he was made bankrupt on 14 February 2003, his real and personal property, including (ultimately) the properties Big Top and Home Farm, and his cattle, vested in his trustee in bankruptcy, the defendant. Between May and August 2003, musters of the property resulted in Wesfarmers Landmark, who held a stock mortgage over the cattle, selling 392 cattle. Thereafter, a few other cattle, belonging to third parties, remained on the properties. At the heart of these proceedings is the issue whether any cattle that belonged to Mr Tyler remained. 2 Of the cattle sold by Landmark as mortgagee, 64 head were ultimately acquired in early November 2003 by the plaintiff Big Top Hereford Pty Limited ("BTH"), as trustee for the Big Top Hereford Trust, of which William Peter Jupp is the beneficiary. Although he maintains that he is independent of Mr Tyler and makes all relevant decisions himself, and that Mr Tyler is merely his caretaker of the herd, this is very difficult to accept: Mr Tyler has obviously played a major role in the management of the herd; invoices and sales advices in respect of the cattle in it are addressed to him; it is he who maintains the stud records; and he appears far better informed than Mr Jupp as to the status and origins of BTH's herd. But, except as to credit, this is beside the point, because even if Mr Tyler had some beneficial interest in the Big Top Hereford Trust - and there is no evidence that he has - BTH acquired the 64 head from a subsequent purchaser after they had been sold by the mortgagee for value at an arm's length auction sale, so that if they had found their way back to Mr Tyler - who is now discharged from bankruptcy - his trustee would have no further claim to them. 3 From late 2003, BTH's cattle were agisted on the property Big Top, which Mr Tyler had, on 10 November 2000, transferred to his nephew Michael Tyler. That transfer has subsequently been declared void as against Mr Doug Tyler's trustee in bankruptcy. BTH paid agistment to Michael Tyler. Following the avoidance of the transfer of Big Top to Michael Tyler, the trustee became registered as proprietor of Big Top on or about 29 June 2006, and has entered into possession of the property. Subsequently he has mustered the property, and has now removed all the cattle on it, for sale. After about 46 were sold at Dorrigo on 13 September 2006, he was restrained by interlocutory injunction, initially obtained late on 18 September 2006, from selling the remainder, other than steers, and there is no evidence that he has in fact sold any steers. The remaining cattle which were mustered from Big Top number about 253, and are currently held on a property at Seelands, near Grafton.

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18 During July and early August, there were further attempts at mustering the properties. Mr Tyler was unco-operative and frustrated some of these attempts. Although Landmark as mortgagee of the stock appears ultimately to have been responsible, it is also clear that the trustee had some involvement in the musters, and received reports on the sales. 19 One of Mr Tyler's objections to those musters was that amongst the cattle being mustered were those that belonged to Mr Cromie. On 11 August 2003, 23 cattle (17 cows, one bull and five calves) were trucked from Big Top to Mr Cromie ("the Cromie 23"). Although the evidence is less than compelling, so far as it goes it favours the view that these were Mr Cromie's cattle; an invoice from the carrier addressed to Mr Cromie provides some corroboration for Mr Tyler's assertion to that effect, notwithstanding that Mr Cromie gave no evidence on this topic. 20 Over the next couple of days, 13 and 14 August 2003, further attempts were made to muster the property. When the cattle were yarded, Mr Tyler identified a number said to belong to Mr Cromie, his mother, his nephew and his niece, as a result of which 18 mature cattle (including probably two bulls) were left on the property ("the Home Farm 18"). His evidence that the trustee indicated that he wanted nothing to do with them was neither contradicted nor challenged, and on this matter I accept it, although I treat much of Mr Tyler's evidence with serious reservations - due to his reluctance to admit past statements made by him or on his behalf when they are adverse to his current position (in financial statements, correspondence and even in his affidavit), his proven unreliability on assertions of fact already mentioned (for example, his denial of having written the stock figure entires on the stock mortgage), and contradictions between his past statements and his current version (for example, his assertion in his affidavit that Mr Johnson took four decks of commercial heifers from the properties "early in the bankruptcy" compared to his assertion in earlier correspondence that two decks were taken and the proven fact that they were taken long before his bankruptcy, in 1999), and his combative demeanour.

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49 The fifth is that in the herd now registered in the records of the Hereford Society to BTH, there are 44 animals which were previously registered to Doug Tyler, and another 34 which are progeny of animals formerly registered to Doug Tyler. The trustee submits that this supports the inference that the BTH herd includes cattle that escaped the 2003 musters. 50 However, given the origin of the BTH herd and the manner of its acquisition, there is nothing surprising about the circumstance that its animals were previously registered to Doug Tyler; indeed, it would be surprising if they were not. I do not think that these figures demonstrate any particular implausibility as to the source and origin of the Big Top herd. Cromie had purchased 44 mature females (and 29 heifers, some of whom may have been of breeding age), from the Big Top herd at the sales. The Paterson 64 included 23 mature females and 31 heifers, at least a few of whom may have been born as early as 2001, given the apparent flexibility of the range of ages and calving status which attaches to the word heifer. In addition, the Cromie 23 contained 17 cows. The evidence - including correspondence on behalf of Cromie before proceedings were commenced, which appears to have been frank - indicates that nine cows to which he was entitled - some of them bearing the Big Top prefix and some bearing his own "Creebank" prefix - were in the herd; these were likely to be amongst the Cromie 23 and the Home Farm 18. According to the records of the Hereford Society Mr Tyler's registered female herd had comprised a total of 118 females, plus 40 calves as at 28 February 2003. And while it is correct that another 34 animals in the BTH herd are the progeny of animals previously registered to Mr Tyler, only 11 of them were born before November 2003; all those were born after October 2002 and would plainly have qualified as heifers at the time of the sales. Forty-four adult females and 11 heifers can be accounted for by the Paterson 64 (23 cows and 31 cow/heifers) and the Cromie 23 (17 cows and five calves).

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