Meadowlands BFT Pty Ltd v Shoalhaven City Council

Background

1. At all material times the Council was the owner of a rural property in the Shoalhaven area known as Wondalga Farm ('Wondalga").
2. On about 25 August 2014, the Council entered into an Agistment Licence Agreement with BKK Shoal River Holdings Pty Ltd ("BKK") as licensee (the "Agistment Licence Agreement"). Under the Agistment Licence Agreement, BKK was granted an exclusive licence to use and occupy Wondalga Farm for the "permitted use" of "low intensity grazing of stock of the licensee". [3] BKK was obliged to keep the farm in good repair [4] and precluded, amongst other matters, from assigning the licence without the written consent of the Council. [5] The Council made no warranty as to the suitability of the premises. [6] BKK was also obliged to "erect a semi-permanent electric fence on the boundaries of the property" at its own expense where no substantial fence existed at the time of the commencement of the permitted use. [7] BKK was also required to "undertake all measures necessary to protect any watercourses on the property from pollution or any contamination". [8]
3. The Agistment Licence Agreement was signed on behalf BKK by Phillip Bowden as its "authorised representative". David Eastley was the sole director of BKK. [9] Phillip Bowden was never a director of BKK but described himself as its "business manager". In his affidavit, he stated that Mr Eastley appointed him to that position. [10]
4. An amending deed to the Agistment Licensing Agreement was executed in July 2016. It was signed on behalf of BKK by Kevin Bowden purportedly as a Director, [11] even though a company search records that, as noted, David Eastley was the only Director of BKK. The terms of the amendment are immaterial save that it is difficult to reconcile with the assertion that somehow BKK had assigned its rights under the Agistment Licensing Agreement to Meadowlands by that time.
5. Meadowlands was incorporated on 11 January 2016 with Kevin Bowden as its sole Director. [12] In his affidavit, Phillip Bowden stated that Meadowland acquired its own cattle and agisted them on Wondalga. [13]
6. In his affidavit, Phillip Bowden states that by early 2016 he had advanced approximately $500,000.00 to BKK. He said that Mr Eastley agreed to sell Meadowlands 140 cattle in partial satisfaction of the debt. He annexes an invoice bearing the date "26 February 2016". [14] He said that in September 2016 he, his brother, and David Eastley agreed that "Kevin or Meadowlands" would take security over "BKK's cattle on Wondalga Farm". [15] In his affidavit, Phillip Bowden states that he made a minute of the meeting which is annexed to his affidavit. However the annexure is not a minute, but a document entitled "Deed of Assignment for 'Wondalga Farm'". [16] It bears the date 16 January 2016 and purports to be an assignment of the "lease" over Wondalga to Kevin Bowden or his nominee. There is no suggestion that the Council approved the assignment.
7. In his affidavit, Phillip Bowden states that he and Kevin managed Wondalga. He says that Meadowlands purchased cattle and agisted them on Wondalga [17] and that it continued to purchase them until 17 October 2018. [18]
8. On 29 January 2018, the Council wrote to BKK giving three months' notice of the requirement to vacate the property. [19] The Council followed up with another letter to BKK enquiring about its plans to leave on 23 February 2018. [20] According to an affidavit from a unit manager at the Council, Ms Patricia Hoerlein, on the same day, she spoke to Phillip Bowden. He advised that David Eastley was seeking legal advice in relation to obtaining twelve months to vacate the property. Ms Hoerlein disclaimed any knowledge of a legal requirement to do so but indicated that the Council was prepared to discuss the issue. [21]
9. On 1 March 2018, a meeting took place between Ms Hoerlein, Phillip Bowden and Mr Trevor Cronk, the manager of the property unit at the Council. According to Ms Hoerlein, Phillip Bowden advised that Mr Eastley could not attend the meeting because he was in Queensland, but stated he was "authorised to represent BKK". He implored Council to act "honestly and fairly". She recalls Mr Bowden alleging that he had previously complained that the Council's contractors had cut the fences at the property and left gates open to allow cattle to wander off. Ms Hoerlein denied being aware of any such complaints. According to Ms Hoerlein, Mr Bowden sought 12 months to find another property to move to but Mr Cronk refused. She recalled Mr Cronk stated "we may allow you an additional six months from today" provided the outstanding agistment fees were paid. Ms Hoerlein recalls Phillip Bowden saying he would accept the additional six months. Mr Cronk's recollection was not relevantly different to Ms Hoerlein. [22]
10. Phillip Bowden addressed this conversation in his affidavit. [23] As I will explain, he relies on this conversation as one of his particulars of the agreement that it is contended Meadowlands reached with the Council. However, in Mr Bowden's version of the conversation there is no reference to Meadowlands. His version of the conversation is very similar to Ms Hoerlein's in that he recalls stating that Mr Eastley could not attend because he was in Queensland and that he sought 12 months to vacate Wondalga. Phillip Bowden recalls Ms Hoerlein stating that the Council might allow an occupation for a few months more. Phillip Bowden's affidavit does not record any agreement being reached on that period. He attaches a diary note which he says he prepared after that meeting. [24] The terms of that diary note do not assist in relation to resolving the relatively minor discrepancies between their respective versions. To the extent that it is necessary to decide, I accept Ms Hoerlein's and Mr Cronk's version.
11. By letter bearing the date 1 March 2018, Ms Hoerlein wrote to BKK referring to "yesterday's meeting" which I infer was the meeting which took place on 1 March 2018. [25] Ms Hoerlein's letter stated the notice to vacate was extended until 1 September 2018, conditional upon an acknowledgement by Mr Eastley of that date, and payment of all outstanding monies by BKK, with the current outstanding amount being $18,834.09. The letter stated that, if the conditions were not complied with by 1 April 2018, then the original vacation date, being 28 April 2018, remained in force.
12. In response to emails from Ms Hoerlein, on 11 April 2018 Phillip Bowden sent her an email "on behalf of BKK Shoal River Holdings P/L" in which he raised a number of issues including the basis upon which the Council had previously increased the rent. There was no reference to Meadowlands in his email. [26] As a result of this email, Ms Hoerlein undertook an audit of the agistment fees and determined that the Council had not applied a rent abatement which had resulted in BKK being overcharged a total of $7,150.00. As a result, she determined that the amount owing as at 11 April 2018 was reduced to $3,984.09 of which only $134.09 was outside the Council's payment terms of 30 days.
13. On 16 April 2018, Ms Hoerlein emailed Phillip Bowden attaching a letter entitled "extension of tenancy confirmed - credit note to be raised, BKK Shoal River Holdings Pty Ltd - Wondalga Farm". [27] The letter confirmed that the terms offered by the Council for the extension of the tenancy until 1 September 2018 had been met.
14. On 3 June 2018, Ms Hoerlein was transferred to another position within the Council. [28] In July 2018, Mr Heath Muller assumed responsibility for the day to day management of Wondalga. [29]
15. On 21 August 2018, Phillip Bowden wrote to Mr Muller describing himself as "Manager BKK Shoal River Holdings P/L". [30] The letter sought an extension of the occupation of the property for another six to eight weeks. It said the company had intended to purchase a property at Forbes, but the sale had fallen through. The letter stated that Wondalga was "badly drought affected" but added "it is envisaged there will be sufficient fodder to maintain the company stock in or about [the] extra period requested". [31]
16. Mr Muller responded on 23 August 2018 advising that the Council would grant an extension of its occupation if certain conditions were met prior to 1 September 2018, which included the removal of all non-cattle possessions by 31 August 2018. [32] Phillip Bowden responded by email the following day indicating that Mr Eastley had instructed him to engage solicitors to represent BKK immediately. [33]
17. On 30 August 2018, Phillip Bowden emailed Mr Muller advising him that "acting under the instructions of BBK Shoal River Holdings director I instructed a solicitor to represent the company". The email added, "The sheep and the alpaca do not belong to BKK Shoal River Holdings (they have been dumped there) will be given away or surrendered to the pound?" (sic). [34]
18. On 10 September 2018, Mr Muller wrote to Phillip Bowden "Manager BKK Shoal River Holdings P/L" noting the Council's willingness to offer an extension for a maximum of eight weeks from the date of the request, 21 August 2018. The letter stated that "[n]otice to Vacate is hereby extended until Tuesday, 16th October 2018" and that "Council is unable to offer a further extension to this exit date". [35]
19. Unknown to the Council, on the same date, ie 10 September 2018, BKK was deregistered. [36] On the deregistration of BKK, all of its property vested in the Australian Securities Investments Commission ("ASIC") (Corporations Act, s 601AD(2)).
20. In his affidavit, Phillip Bowden states that on 1 October 2018 he and his brother counted 737 cattle on Wondalga. [37]
21. On 10 October 2018, a solicitor from the firm "NG Solicitors" emailed Mr Muller advising that her firm acted "on behalf of Phillip Bowden, Manager of BKK Shoal River Holdings P/L" regarding Wondalga. [38] She sought a further extension of five weeks occupancy of Wondalga. The next day, Mr Muller obtained the ASIC company extract for BKK which indicated it had been deregistered. [39] On 15 October 2018, Mr Muller responded to the solicitor stating that no extension would be granted and requiring that BKK remove its stock and chattels and vacate the property by midnight Tuesday, 16 October 2018. [40]
22. On 17 October 2018, Mr Muller attended the property with a Council ranger to take possession on behalf of the Council. In his affidavit, Mr Muller said that Phillip and Kevin Bowden were present when they arrived. Mr Muller said that Mr Woodgate told them that "we are taking possession of the property and impounding all of the chattels and livestock pursuant to the Impounding Act". He also told them that BKK was deregistered and they were not entitled to be on the property. [41] Mr Muller recalls Mr Phillip Bowden protesting that they were not given due process. He advised him again that BKK was deregistered and the ranger advised them that they need to leave the property immediately. Mr Muller said he then affixed copies of an impounding notice to the fences and gates to the property and secured the entry and exit with locks and chains. [42]
23. A photograph of the impoundment notice reveals that it states that "as per Part 3 section 24 of the Impounding Act 1993 Shoalhaven City Council has impounded all the chattels and cattle stock located here on Wondalga Farm". It specified that access was only with the approval of the Council and that any claim for possession of the cattle may be made to the Property Unit of the Council. [43] As explained below, s 24 does not confer any power to impound cattle or other items.
24. On the same day, Mr Muller wrote to ASIC advising that the Council had taken possession of Wondalga which had previously been occupied by BKK and impounded several hundred cattle pursuant to the Impounding Act. It advised that the cattle would be sold or otherwise disposed of within 14 days if not claimed by ASIC or BKK should it be reinstated. [44] ASIC responded the next day, ie 18 October 2018, stating that it had no objection to the Council exercising its rights. ASIC advised the Council that it had written to BKK's former officers advising them of the need to reinstate the company by 18 November 2018. [45]
25. In his affidavit, Phillip Bowden states that on 17 October 2018 he attended Wondalga with a veterinarian that he asked to attend. He said that he witnessed the representatives of the RSPCA shoot cattle. [46]
26. On 19 October 2018, Mr Muller attended an inspection at the property with a qualified veterinarian, Dr Walker and two representatives of the RSPCA. When he arrived at the property, Phillip and Kevin Bowden were at the entrance. In his affidavit of 6 September 2019, Mr Muller set out a conversation that occurred at that time about ownership of the cattle in which he recalled Phillip Bowden saying that the cattle belong to BKK and the RSCPA representative advising that if animals were found to be suffering they may need to be euthanised. [47] However, in his affidavit dated 8 May 2020, Mr Muller states that he had the opportunity to review his handwritten note he made at the time of that conversation [48] which contains an entry "Meadowlands Pty Ltd bought cattle from BKK". He accepted that on that day, ie, 19 October 2018, he became aware of the assertion that the cattle on Wondalga were owned by Meadowlands.
27. In his affidavit, Phillip Bowden states that he again witnessed cattle being shot on 19 October 2018. [49] This is consistent with other records which confirm that following an inspection by the RSPCA, 12 cattle were euthanised. [50] At around 7.34pm that night, Phillip Bowden sent an email to Mr Muller complaining about the Council and the RSPCA's actions. [51] Three more cattle were euthanised on 22 October 2018 and another head of cattle was euthanised on 15 November 2018. [52]
28. On the same day as the meeting, that is, 19 October 2018, NG Solicitors wrote to Mr Muller in a letter entitled "Shoalhaven City Council - "Wondalga Farm" - BKK Shoal River Holdings Pty Ltd". [53] It requested a reconsideration of the Council's position in relation to granting "our client an extension of time to remain upon the property". It also reminded the Council of the obligation to care for the animals imposed by sub-section 13(2) of the Impounding Act. Given the wording of the letter, it is clear that the reference to "our client" was to BKK.
29. On 22 October 2018, the Council's solicitors responded to NG Solicitors advising that BKK was deregistered and seeking clarification for whom they were acting. [54] They otherwise advised that the Council would not be parting with possession of Wondalga and that should BKK be reinstated it would be required to provide proof of ownership of the cattle.
30. As noted, on the same day, three animals were euthanised. Further, an RSPCA inspector issued a written direction under s 24(n) of the Prevention of Cruelty to Animals Act 1979 requiring compliance with various directions and recommendations of the district veterinarian. [55] The directions included a requirement that all livestock be prevented from accessing "effluent containing channels and waterways" as well as a requirement to provide feed. Further directions and recommendations from the district veterinarian were issued over the following days. [56]
31. In his affidavit, Mr Muller explained that by late October 2018 it was determined that the Council did not have the appropriate resources to continue the day to day management of Wondalga. He said an independent contractor trading under the name "Down2Earth Engineering" was retained to take over the management of Wondalga and the cattle. [57]
32. On 30 October 2018, NG Solicitors wrote to the Council's solicitors. They stated that they acted on behalf of Meadowlands. The letter made application for the release of the impounded beef cattle and property, plant and equipment currently located on Wondalga. It referred to s 23 of the Impounding Act. The letter enclosed an affidavit of Kevin Bowden which they contended should satisfy the Council that Meadowlands was the owner of the items listed in the affidavit. They sought details of the fees and charges incurred. [58]
33. The enclosed affidavit was affirmed by Kevin Bowden and bore the date 30 October 2018. [59] In that affidavit, Mr Bowden stated that he was the sole shareholder and director of Meadowlands. He said that he attached tax invoices from a licensed stock agent which was said to evidence the purchase of the cattle "from September 2017" (although the invoices were not included in the tender bundle). [60] His affidavit asserts that Meadowlands purchased the property, plant and equipment located on Wondalga and states that he annexes a copy of a depreciation schedule for the 2017 financial year. [61] The details of the precise means as to how the purchase of cattle took place was not stated.
34. At this point, I note that Kevin Bowden's description of how Meadowlands supposedly acquired BKK's cattle is not consistent with that provided in Phillip Bowden's affidavit note above. Kevin Bowden referred to invoices for sales "from September 2017" whereas Phillip Bowden attached an invoice bearing the date 26 February 2016. Phillip Bowden appeared to suggest the balance of BKK's cattle was acquired via the exercise of some security that Meadowlands had over the cattle whereas Kevin Bowden stated that they were simply purchased along with the balance of the equipment on Wondalga.
35. On the evening of 30 October 2018, the Council's solicitor responded indicating that he would seek instructions from the Council, but querying the basis upon which Meadowlands asserted it was entitled to have cattle on the Council's land in the absence of the Council's consent. He also queried whether Meadowlands was prepared to fully indemnify the Council if it was prepared to release the cattle to it. [62] The following morning, NG Solicitors advised that they considered those issues to be separate from their request which was an application under the Impounding Act 1993 only. [63] The Council's solicitor responded repeating the concerns raised in the email of the previous day. [64]
36. On 5 November 2018, the Council's solicitor wrote to NG Solicitors under the cover of a letter entitled "without prejudice save as to costs". The letter was tendered in these proceedings. The Council's solicitors offered two options for the resolution of the matter but noted that both options were "subject to and strictly conditional upon" Meadowlands providing evidence of ownership of the cattle in the form of the "National Livestock Identification System Buttons/Devices" and the "National Vendor Declaration relative to Wondalga Farm". In the event that was to occur, the first option was to allow limited supervised access to Meadowlands to Wondalga to enable it to manage the loading of cattle for transportation on condition of a payment of $150,000 in the Council's solicitor's trust account as security for the Council's costs incurred to date and the entry into of a settlement of deed. [65] The second option was that, if that was unacceptable, that the "Council reserves all rights open to it as an authority under the Impounding Act 1993 to sell all cattle and recover costs and damages incurred". [66]
37. On 7 November 2018, NG Solicitors responded. [67] They contended that the Council were unreasonably refusing to release the cattle to their true owner, queried the Council's power under the Impounding Act to require $150,000 be placed into the trust account, but nevertheless offered to provide the amount of $20,000 as security. They also queried the power to request a deed of settlement and sought the provision of notice under s 21 of the Impounding Act (see below). [68] Further, NG Solicitors sought limited supervised access to Wondalga for the purpose of veterinary testing the cattle so that they could complete National Vendor Declaration Certification at the time of transport. [69]
38. On 9 November 2018, the RSPCA issued two further written directions in relation to the care of the cattle on Wondalga. [70]
39. In the opening paragraph of his affidavit sworn 8 July 2019, Phillip Bowden stated that he was appointed as a director of Meadowlands on 20 November 2018. [71]
40. On the same day, Meadowlands commenced these proceedings by filing a summons. The summons sought orders restraining the Council from, inter alia, destroying, selling or disposing of the cattle and enabling Meadowlands access to the cattle.
41. The proceedings were returnable before Fagan J on 26 November 2018. Meadowlands was represented by counsel. Consent orders were entered into which provided, amongst other matters, as follows: 1. By no later than 10 December 2018, the plaintiff by its agent is to remove all stock, property plant and equipment and feed (excluding property, plant and equipment owned by the defendant or third parties) from the property. 2. The plaintiff by 10 December 2018 will cause the sale of the livestock removed by order 1. 3. The plaintiff to give the defendant 24 hours' notice of: (a) the name of the stock and station agent to carry out the sale; (b) the name of the transport company; (c) the description and quantity of the livestock to be loaded; (d) the identity of the plaintiff's agent to attend prior to each collection of the livestock; (e) the destination and the Property Identification Code for that destination 4. For the purpose of orders 1 and 3, the defendant will do all things necessary to enable collection, transport and sale of the livestock including but not limited to booking the transportation and completing the Vendor Declaration. 5. The costs of the transportation referred to in order 4 are to be borne by the plaintiff. 6. From the proceeds of sale of the livestock pursuant to order 2, the sum of $300,000 be paid into court prior to disbursement to the plaintiff, until further order. 7. The court notes that the plaintiff agrees to provide an irrevocable authority ad direction to its stock and station agent(s) in a form acceptable to the parties with respect to payment in accordance with order 6. 8. By no later than 13 December 2018, the defendant provide to the plaintiff with particulars of its fees and charges for management of the livestock. 9. In the event the livestock is not removed from the property pursuant to order 1, the defendant shall be entitled to dispose of the livestock remaining on the property.
42. In his affidavit, Phillip Bowden stated that he attended court on this day as "I had shortly before this date been appointed a director of Meadowlands". [72] He observed that there was a discussion "between the lawyers representing the parties in which I did not participate" and that the judge made consent orders. [73]
43. In his oral evidence, Phillip Bowden stated that he was not appointed a director until December 2018. [74] He asserted that he was not consulted about the form of the consent orders and was opposed to them. [75] He also asserted that his brother Kevin was not consulted about the orders. [76] His attention was drawn to the terms of his own affidavit in which he said that he had been appointed a director on 20 November 2018, as well as the company search which confirmed that. [77] In response, Phillip Bowden simply reiterated his recollection that he was appointed after that date. His denial of the fact that he had been appointed a director by that time, is one of a number of matters that have caused me to doubt the reliability of what he stated. To the extent that he denied that he or his brother had any knowledge of the consent orders, I reject his evidence. In any event, there is no reason to doubt that counsel who appeared for Meadowlands on 26 November 2018 had instructions to agree to those orders. Any doubt about that is resolved by the execution by Kevin Bowden of various irrevocable authorities and direction in the days that followed, as next described.
44. At the conclusion of the hearing, counsel for Meadowlands gave notice pursuant to order 3 above for the transportation of the weaners from Wondalga to the Yass saleyards. [78]
45. On 28 November 2018, Meadowlands' solicitors provided a direction, signed by Kevin Bowden, directed to "Nick Harton of Jim Hindmarsh & Son Pty Ltd" in respect of the sale of some cattle. [79] On that day, some cattle were collected from Wondalga and transported to Yass saleyards where 166 were sold yielding a net sale amount of $81,707.77. [80] That amount was paid into Court.
46. On or about 29 November 2018, Meadowlands' solicitors provided notice signed by Kevin Bowden pursuant to order 3 of the consent orders, along with an irrevocable authority signed by Kevin Bowden and addressed to Forbes Livestock and Agency Company Pty Ltd, for the sale of the balance of the cattle. [81] There was further correspondence between the parties as the Council became concerned that the cattle would not be transported for sale at the Forbes saleyard but to a private farm. [82] Ultimately, that was clarified and further advice was provided by the district veterinarian. [83]
47. On about 5 December 2018, a number cattle were transported to Forbes saleyard and 392 were sold. [84] A number of cattle died in transit and some died pending sale. [85]
48. Prior to the dispatch of the cattle to Forbes saleyard, on 4 December 2018 the district veterinarian directed that 21 cattle were not in a condition to be transported. They were kept at Wondalga. [86] Between 4 December 2018 and 13 December 2018, two more calves were born increasing the remaining cattle from 21 to 23. [87] On 13 December 2018 those last 23 cattle were sold for $6,603.34. [88]
49. On 8 January 2019, Mr Grayson from Forbes Livestock and Agency Company paid $300,000 to the Registrar. [89] It seems he retained an amount of $85,715 in his trust account. [90] Although there was dispute about the manner of disposition of those funds, I was not asked to resolve it.

The Pleaded Cases

1. Meadowland's statement of claim recites the existence of the agistment agreement between BKK and the Council. It then pleads that the agreement was terminated on 29 January 2018 and replaced by a "2018 agistment agreement" between Meadowlands and the Council and that, pursuant to that agreement, Meadowlands used Wondalga to graze its cattle. Meadowlands pleads that the impounding of its cattle on 17 October 2018 was a breach of its agistment agreement, a trespass upon Wondalga "actionable" by Meadowlands and otherwise a trespass to or conversion of its cattle.
2. By its defence, the Council denies that it had any agreement with Meadowlands and asserts that it was entitled to enter upon its own land and the Impounding Act empowered it to impound the cattle. By its cross‑claim, the Council contends that on 17 October 2018 it impounded the cattle under the Impounding Act and, in particular, established a "private pound" under s 28. It further pleads that it incurred expenses in impounding, holding and disposing of the cattle and it is entitled, pursuant to s 25 of the Impounding Act, to recover those expenses from the sale proceeds of the cattle. As noted, it did not press its pleaded claim for damages for trespass.

Rights to Occupy Wondalga

1. The first issue that arises on the pleadings is whether Meadowlands established that the agistment agreement between the Council and BKK was terminated in January 2018 and a new agistment agreement was reached between Meadowlands and the Council. The relevant part of the Statement of Claim pleads as follows: "Termination of the 2014 Agreement 9 On 29 January 2018 the Defendant terminated the 2014 Agreement. Particulars See paragraph 5 of the affidavit of Heath Muller sworn on 23 November 2018 herein. The 2018 Agreement 10 In 2018 an agreement was made between the Plaintiff and the Defendant ("the 2018 Agistment Agreement"). Particulars of Agreement (i) the 2018 Agreement was partly express and partly implied. … (iii) the express part was oral and consisted of conversations which took place in the course of meetings held between Mr Phillip Bowden, representing the Plaintiff and officers of the Defendant in early 2018. … (iv) the implied part arose in consequence of payment of agistment fees by the Plaintiff to the Defendant and the acceptance by the Defendant of such payments."
2. In relation to the suggestion that the agreement with BKK was terminated, Mr Muller's affidavit sworn 23 November 2018 was not read at the hearing. The only evidence of what occurred on 29 January 2018 is set out above. In summary, while three months' notice to vacate was given to BKK on that day, it was later extended to 16 October 2018.
3. As for the supposed agreement between Meadowlands and the Council, nothing in any version of the conversations between Council staff and Phillip Bowden until 17 October 2018 provides any support for the existence of such agreement. Mr Bowden does not contend he referred to Meadowlands in the meeting on 1 March 2018. [91] It is not referred to in any of the emails or other correspondence. I am not satisfied that he ever referred to Meadowlands in any conversation with Council staff until 19 October 2018 much less attempted to negotiate an agreement with the Council on its behalf. Further, there is no evidence that, prior to 20 November 2018, he had any authority to bind Meadowland to any contract.
4. As for payment, Philip Bowden's evidence was that the agistment fees paid from April to September 2018 were paid from "Meadowlands' Business Bank account". [92] However, there is no evidence that the Council was ever aware that Meadowlands was making those payments. Mr Muller's evidence demonstrates that it received the payment as part of a bulk processing of "bpay" payments that did not identify the payee. [93]
5. It further follows that Meadowlands has not established any agreement enabling it to occupy Wondalga or agist cattle on Wondalga. It also follows that, as at 17 October 2018, Meadowlands had no lawful basis for any cattle it owned to be present on Wondalga. BKK possessed a lawful right to occupy Wondalga until at least 10 September 2018. However, that right either lapsed on its deregistration on that date or, at most, was vested in ASIC on that day along with its other property including its cattle.
6. In any event, whatever rights of occupancy remained under the 2014 agistment agreement they ceased no later than midnight on 16 October 2018. As the owner, the Council was entitled to enter upon Wondalga on 17 October 2018 and its actions in doing so were not a breach of any contract or any form of trespass.

Right to Impound Cattle under the Impounding Act

1. Before addressing the rest of each party's case, it is necessary to address the effect of the Impounding Act. The scheme of the Act was recently described by Adamson J in Dubow v Mid-Western Regional Council [2021] NSWSC 699 at [4] to [8]. Unlike that case, in this case no submissions were directed to the effect of Local Land Services Act 2013. As her Honour noted (at [40]), the proper approach to the construction of the Impounding Act was stated by Hidden J in Woolworths Ltd v Waverley Council [1999] NSWSC 308; (1999) 103 LGERA 227, at [44]: "The [Impounding] Act should be construed in the light of the fact that it permits the serious invasion of the proprietary rights of citizens (and corporations). The powers granted by the Act must be exercised in accordance with the conditions expressly imposed by it, or fairly to be implied in it."
2. Part 2 of the Impounding Act addresses the conferral and exercise of powers to impound animals and articles. Part 3 addresses how impounded items, including animals, are to be dealt with by "Impounding Authorities". Part 4 addresses the establishment of "pounds". In broad terms "impounding officers" and, in some circumstances, occupiers of private land may impound "items" including animals. Occupiers have certain obligations to return impounded animals to their owners but unless they are engaged, they and impounding officers must deliver impounded animals to a "pound". From that time, so called "Impounding Authorities" must deal with them.
3. "Impounding Authority" is defined in the Dictionary to the Impounding Act. It includes a "Council" constituted under the Local Government Act 1993 (such as the defendant in this case). An "impounding officer" is defined as a person appointed by an Impounding Authority to exercise the powers of an impounding officer. Section 28 deals with the establishment of pounds. It provides: 28 Impounding authority can establish public or private pounds (1) An impounding authority may establish one or more pounds on land in its area of operations or under its control, and may close any such pound. A pound may be established as a public pound or as a private pound. (2) A public pound is for the use of the impounding authority that established it, members of the public and other impounding authorities (in accordance with arrangements under section 29). A private pound is for the use only of the impounding authority that established it. (3) An impounding authority is responsible for the management and operation of a pound that it establishes.
4. Counsel for the Council, Mr Parsons, contended that the evidence demonstrated that from 17 October 2018 the Council established Wondalga as a "private pound". I accept that submission. Wondalga is land "in [the Council's] area of operations" and "under its control" (s 28(1)). A review of the evidence concerning Council's actions confirms that, on and from 17 October 2018, Wondalga was used and intended to be used for maintaining impounded animals. It was only intended for the Council's use and not for members of the public or other impounding authorities.
5. Sub-section 8(1) of the Impounding Act provides that something is "impounded" as soon as an impounding officer or an occupier of private land takes possession of it under a power conferred by the Act. Within Division 2 of Part 3, s 10 enables "impounding officers" to impound an animal that the officer believes on reasonable grounds to be trespassing in a place in the area of operations" of the officer. Subsection 11(1) obliges the impounding officer to deliver an impounded animal "to a pound as soon as practicable after the animal is impounded". To exercise the power to impound, an impounding officer must be in possession of a written authorisation issued by the impounding authority (s 42(1)).
6. The Council did not contend that the impounding of the cattle on 17 October 2018 was authorised by s 10. Instead, it contended that it was authorised by s 12 which provides that an "occupier of private land may impound an animal that is trespassing on the land". As at 17 October 2018 there was only one lawful occupier of Wondalga namely the Council. It follows from the above findings that, regardless of who owned the cattle on Wondalga, those cattle were trespassing. It follows that I accept that the Council, via its officers, was entitled to impound the cattle as it did.
7. Sections 13 and 14 of the Impounding Act specify what an occupier of private land must do with impounded animals. They provide: 13 Action to be taken when identity of owner known (1) An occupier of private land who impounds an animal and knows or can easily find out the owner's identity must inform the owner of the animal's whereabouts within 24 hours of impounding the animal and must then either - (a) immediately have the animal delivered to the nearest convenient public pound, or (b) keep the animal on the land for a period of not more than 4 days and then (if the animal has not been claimed by its owner) have the animal delivered to the nearest convenient public pound. (2) The occupier must ensure that any animal kept on the land after it is impounded - (a) is provided with adequate food, water and veterinary care, and (b) is kept in a place that is well drained and maintained in a clean condition, and (c) is provided with adequate shade for the climatic conditions, and (d) is kept secure, and (e) is separated from other animals that are diseased or, if the animal is or appears to be diseased, is kept separate from other animals. (3) If the owner of the animal claims the animal, the occupier must do one of the following - (a) release or send the animal to its owner on payment in full of the appropriate charge, (b) if the animal's owner declines to pay the appropriate charge - have the animal delivered to the nearest convenient public pound, (c) release or send the animal to its owner without payment in full of the appropriate charge. (4) If the occupier releases or sends the animal to its owner without the appropriate charge having been paid in full and the owner does not within 7 days pay the occupier the appropriate charge in full and any costs of transporting the animal to its owner, the occupier may recover the charge and costs from the owner as a debt. (5) The appropriate charge is an amount not exceeding - (a) the expenses actually incurred in providing the animal with food, water and veterinary care, and (b) the cost of rectifying any loss or damage attributable to the trespassing of the animal. (6) An occupier of private land who fails to comply with a requirement of this section is guilty of an offence. 14 Action to be taken when identity of owner not known An occupier of private land who impounds an animal and does not know and cannot easily find out the identity of the owner of the animal must have it delivered to the nearest convenient public pound within 48 hours of the impounding.
8. Subsection 13(1) imposes an obligation on an occupier who "knows or can easily find out the owner's identity". Subsection 13(3) imposes obligations on an occupier if the "owner of the animal claims the animal". Section 14 addresses the circumstance where the occupier "does not know and cannot easily find out the identity of the owner".
9. As at 17 October 2018 the only entity that owned the cattle on Wondalga that the Council "knew or [could] easily find out" was ASIC being the body that had acquired BKK's assets on its deregistration. Meadowlands had never been notified or even mentioned to the Council as a possible owner of the cattle to that time. As noted, notice was given to ASIC on that day the cattle were impounded. Although Phillip Bowden asserted Meadowlands had bought the cattle on 19 October 2018, he did not represent Meadowlands then and did not claim the animals. Instead, the first "claim" made by anyone else purporting to be the owner was made by NG Solicitors on 30 October 2018. It follows that an obligation arose on the Council no later than 21 October 2018 to deliver the cattle to the "nearest convenient public pound" (s 13(1)(b)).
10. However, the Council did not deliver the cattle to a "public pound" but instead maintained the cattle on a "private pound". There was no evidence that the Council had even established a "public pound" and thus it is not clear that it could have complied with any of s 13(1)(b) (or s 13(3)(b) or s 14). If the cattle had been impounded by an impounding officer under s 10 then they could have been delivered to either a private or public pound.
11. So far as this matter is concerned, the apparent failure of the Council to comply with s 13(1)(b) appears to only have the consequence that it cannot obtain recovery of the "appropriate charge" for the care and maintenance of the animals under s 13(3) or the "charges and costs" under ss 13(4). Those charges appear to be determined by reference to the actual costs incurred by the occupier of private land upon which the animals trespassed (s 13(5)). Ultimately, the Council did not seek recovery under those provisions.

Sale of the Cattle under Part 3 of the Impounding Act

1. The balance of the issues in this case requires a close consideration of Part 3 of the Impounding Act which, as noted above, imposes obligations on "impounding authorities" who are in control of "impounded items" which include impounded animals. The circumstance that the particular impounding authority, in this case the Council, acquired that control by virtue of the exercise of the power under s 12, as opposed to s 10 or by the delivery of the item to a public pound, does not deny the application of Part 3.
2. Sub-section 20(1) imposes an obligation on an impounding authority to "make all reasonable inquiries in an effort to find out the name and address of the owner" of the impounded item. Once established, they must cause notice of the impounding to be given to the owner (ss 20(3)). As noted, on the day of the impounding the Council gave notice to ASIC whom, to its knowledge, was the owner of the cattle. The notice advised that the cattle would be sold or disposed if not claimed within a specified period (s 20(5)).
3. Sub-section 21(1) imposes a duty on an impounding authority to care for animals the same as that imposed by s 13(2). This is subject to the power conferred by s 22 to destroy an impounded animal that is "seriously injured, diseased or starved or is otherwise in a distressed state" (s 22(1)).
4. Sections 23 and 24 deal with the release of impounded items including animals. They provide: 23 Owner can obtain release of impounded item (1) Application may be made to an impounding authority for the release of an impounded item held by it or impounded by one of its impounding officers. The application may be made at any time before the item is sold or disposed of. (2) The impounding authority must release the item to the applicant if - (a) the authority is satisfied on reasonable grounds that the applicant is the owner of the item, is authorised to claim the item on the owner's behalf or is otherwise entitled to lawful possession of the item, and (b) all fees and charges payable in respect of the impounding, holding and disposing of the item are paid to the impounding authority, and (c) the authority is satisfied that all penalties imposed in connection with the event that gave rise to the impounding have been paid, and (d) the applicant signs a receipt for the release of the item. 24 Impounded item to be sold if not claimed (1) An impounding authority must cause an impounded item to be offered for sale if the item is not released before the deadline for release (subsection (5)). The sale is to be by public auction or public tender. (2) The item may be disposed of otherwise than by sale if the impounding authority believes on reasonable grounds that the item has no monetary value or that the proceeds of sale would be unlikely to exceed the costs of sale. (3) If an impounded item offered for sale is not sold, the impounding authority may dispose of the item otherwise than by sale. (4) An impounding authority that has offered an impounded animal for sale may destroy the animal if it is not sold within 7 days after being offered for sale. (5) The deadline for release for an impounded item is - (a) in the case of an impounded animal - 7 days from the day on which notice was given to the owner of the animal under section 20 or, if reasonable inquiries by the impounding authority concerned have failed to reveal the name and address of the owner, 7 days from the day on which those inquiries were completed, or (b) in the case of an impounded article - 28 days from the day on which notice was given to the owner of the item under section 20 or, if reasonable inquiries have failed to reveal the name and address of the owner, 28 days from the day on which those inquiries were completed or the date on which the article was impounded (whichever is the later). (6) This section does not apply to a motor vehicle destroyed or otherwise disposed of under another provision of this Act.
5. As noted, on 30 October 2018 Meadowland's solicitors wrote to the Council making application for the release of the cattle under s 23. The exchange of correspondence is summarised above. Unfortunately, the letters sent on behalf of the Council were more concerned with arguing over whether Meadowlands ever had any right to occupy Wondalga rather than what rights and obligations under Part 3 of the Impounding Act were engaged. However, in the end result an obligation to release the cattle would only have arisen if, inter alia, the Council had been "satisfied on reasonable grounds" that Meadowlands was the owner of the cattle (s 23(2)(a)). There is no evidence that the Council were ever satisfied of that matter. To the contrary, the terms of the letter of 5 November 2018 suggests that the Council was rightly sceptical of Meadowland's claim to ownership and required more substantial proof. As noted, the first time that the Council had ever heard of Meadowlands' assertion of ownership was on 19 October 2018 and that occurred in circumstances where it had an agistment licence agreement with BKK for many years and had recently learnt that BKK had been deregistered.
6. The affidavit of Kevin Bowden enclosed with the letter of 30 October 2018 did not specify how Meadowlands had acquired BKK's cattle. The circumstances in which Meadowland made the assertion of ownership were clearly suspicious. The Council was entitled to not be satisfied of Meadowland's claim to ownership and there were not reasonable grounds for concluding that it was the owner. To the extent that it may be relevant, the affidavit evidence filed by Phillip Bowden summarised at [10] above only reinforces the doubts that must exist about Meadowland's claim to ownership of the cattle that had at some point been owned by BKK and all the cattle on Wondalga.
7. It follows that, leaving aside s 23(2)(b) to (d), I am satisfied that the Council were not obliged to release the cattle on Wondalga to Meadowlands. It further follows that, as by mid to late November 2018, the "deadline for release" in s 24(5)(a) was exceeded, that an obligation arose on the Council to cause the impounded cattle "to be offered for sale" and the sale was to "be by public auction or tender" (s 24(1)). The Council complied with that obligation by its entry into the consent orders and its actions in facilitating the sale of cattle at Yass and Forbes.

Recovery of Expenses from Proceeds of Sale

1. Sections 25 to 27 of the Impounding Act deal with the recovery of amounts for holding and disposing of impounded items including impounded animals. They relevantly provide: 25 Proceeds of sale of impounded item (1) An impounding authority holds the net proceeds of sale of an impounded item for the person who was the owner of the item immediately before its sale. The net proceeds of sale are the proceeds (if any) remaining after deduction of the expenses of sale and the fees and charges payable in respect of the impounding, holding and disposing of the item. (2) An application for payment of the net proceeds of sale may be made to the impounding authority at any time within 12 months after the item was sold. (3) The authority must pay the net proceeds of sale to the applicant if satisfied that the applicant is entitled to the proceeds. Note - The applicant need not be the owner. (4) If no application is made within that 12 month period, the impounding authority may transfer the net proceeds of sale to such of its funds as it considers appropriate. The money then becomes the property of the authority. 26 Impounding fees and charges (1) An impounding authority may fix the fees and charges that are to be paid in respect of the impounding, holding and disposing of an item by the authority and its impounding officers. The Commissioner of Police may by order in writing fix the fees and charges that are to be paid in respect of the impounding of an item by a police officer. (2) The fees and charges that may be fixed are as follows - • a fee for walking or transporting an impounded animal to the pound or to the address of its owner and to a market or saleyard for sale, • a charge for providing an impounded animal with food, water and veterinary care, • a charge for loss or damage attributable to an impounded animal while it was unattended or trespassing, • a fee for conveying an impounded article to a pound, • a fee for storing an impounded article at the pound, • a fee to cover the cost of serving a notice notifying the owner of an impounded item that the item may be or has been impounded. (3) Fees and charges may be fixed so as to differ according to the kinds of animals or articles impounded. (4) A fee or charge must not exceed the corresponding maximum fee or charge (if any) prescribed by the regulations, and any amount that is fixed so as to exceed the maximum is reduced to the maximum. (5) Fees and charges fixed under this section are the fees and charges payable in respect of the impounding, holding and disposing of an item under this Act. (6) An impounding authority must remit to the Commissioner of Police any fee or charge paid to or deducted or recovered by the authority that was payable in respect of the impounding of an item by a police officer. (7) An impounding authority may waive payment of a fee or charge, or part of a fee or charge, in respect of the impounding of an animal in a public place that had strayed because a gate or fence had ceased to be animal proof due to fire, flood or other natural disaster. 27 General right to recover impounding fees and charges and damages (1) An impounding authority may recover the following amounts as a debt from the person responsible for an impounded item - • the fees and charges payable in respect of the impounding, holding and disposing of the item, • in the case of an animal impounded because it was trespassing - the cost of rectifying any loss or damage attributable to the trespassing of the animal. … (5) Amounts recoverable under this section can be recovered only if they have not already been paid, or deducted from proceeds of sale.
2. As noted, the only relief sought by the Council in its cross claim is an order enabling the net proceeds of sale to be applied against the "fees and charges payable" for the impounding, holding and disposing of the impounded cattle as provided for in s 25(1) of the Impounding Act.
3. Three issues arise in relation to that claim for relief. The first issue is whether it is necessary to make a finding as to which entity was the owner of the cattle that was impounded before giving effect to s 25(1). On its face, s 25(1) does not require an identification of who the owner of the impounded items is. Instead, s 25(2) and (3) provide a mechanism for the Impounding Authority to distribute the balance of the net proceeds of sale to a person who is entitled to them. For the reasons set out below, in this case there is no such amount. Further, subject to considering the effect of the affidavits noted below, the only entities that appear to have an interest in the sale proceeds are the Council, Meadowlands and ASIC as the body that acquired BKK's assets on its deregistration. The Council and Meadowlands are parties to these proceedings and ASIC was put on notice of the Council's claim and raised no objection. In those circumstances I am satisfied that the relief sought by the Council does not require a finding as to whether it was BKK or Meadowlands that owned the cattle impounded on Wondalga. It suffices to state that, having regard to the above, I am left unsatisfied that it was Meadowlands.
4. The second issue is how are the "fees and charges" payable determined? It is notable that ss 25 to 27 uses the phrase "fees and charges" in the context an amount recoverable by a public body (ie, Impounding Authority) and not the expression "cost[s]" or "expenses" as used in s 13(5)(a) and (b) in the context of recovery by an occupier of private land. The fees and charges payable under s 25(1) and s 27(1) are the fees and charges that are fixed by the Impounding Authority pursuant to s 26(1) and in accordance with s 26(2). Mr Parsons noted that s 26(1) confers a discretion on an Impounding Authority to fix a fee and charge ("may"). As I understand it, his contention was that if no fee or charge is fixed then an Impounding Authority can recover its costs or expenses. I do not accept that contention. Instead, if no fee or charge is fixed then an Impounding Authority cannot recover anything under Part 3.
5. In this case the Council read a substantial number of affidavits and tendered numerous documents to demonstrate the costs and expenses that it incurred in impounding, maintaining and disposing of the impounded cattle on Wondalga. This evidence is relevant to a claim for recovery under s 13(4) of the Act, however for the reasons already stated no such claim is available to the Council. Instead, to the extent that the Council seeks to deduct an amount from the net proceeds of sale, its claim can only be for an amount determined by reference to any fee or charge fixed under s 26(1).
6. In the event that it was found that its cross-claim was restricted to recovering an amount calculated by reference to the fee and charges that were fixed under s 26(1), the Council tendered its schedule of fees and charges taken from its "Integrated Strategic Plan 2018". [94] Under the heading "Ranger Services … General", the document specified a fee of $36.00 for "Livestock maintenance per day". [95] I am satisfied that this fee amounts to a fee and charge that has been fixed under s 26(1) of the Act.
7. The amount paid into Court pursuant to the consent orders was $381,707.77 arising from the sale of 581 cattle. The most conservative estimate of the period that they were impounded and maintained was 42 days being the period from 17 October 2018 to 28 November 2018 when the first tranche of cattle was sent to Yass. If 581 cattle are maintained for 42 days at $36 each per day, then the total amount of fixed fees and charges is $878,472.00. This vastly exceeds the amount retained under the consent orders.
8. The third issue is whether the Council's rights of recovery of the "fees and charges payable" under ss 25 to 27 were conditioned on its discharging its duty to care for the impounded animals under s 21(1). Nothing in the text of the Impounding Act supports such a construction. Given the lack of any textual support for that proposition, the broad nature of the duties owed and the fact that the imposition of that duty supports the existence of a duty of care the breach of which has it own remedies, I cannot discern any reason why the Impounding Act should be construed to make the Impounding Authority's entitlement to recovery so dependent. In any event I am not satisfied that there was any such breach.

Meadowlands' Evidence and Complaints

1. The above is sufficient to dispose of the competing claims for relief in the proceedings, however I will address the balance of Meadowland's claims. Much of the written and oral submissions made on its behalf contained scurrilous allegations about the Council that were not within the pleaded case or supported by any evidence. It is not necessary to address them. However, for the sake of completeness, I will address the various complaints made on behalf of Meadowlands about the Council's care of the impounded cattle at least to the extent that they are supported by some evidence.
2. First, it was alleged that the Council did not properly account for all the cattle that were impounded. In his oral submissions, Phillip Bowden asserted that there were 905 cattle on Wondalga on 17 October 2018. [96] As noted, in his affidavit he says that he and his brother counted 737 cattle on 1 October 2018.
3. Mr Muller said that on the day the cattle were impounded a representative of the RSPCA estimated that there were 850 cattle on Wondalga. [97] Mr Muller said that the RSPCA's count was an "over-estimation". He said that he and the farm workers undertook an audit in the days after the impoundment and his estimate was in the "650 to 700 range". [98] He later agreed he counted 655 cattle on 1 November 2018 [99] although in his affidavit he said the count was 664. [100] He denied that he was aware of any cattle missing. [101]
4. As noted, 558 cattle were sold at Yass and Forbes and another 23 were sold thereafter. Mr Muller estimated that around "20 to 30" cattle were euthanised, [102] although I regard that as an under-estimate. The above narrative refers to three cattle euthanised at Wondalga after 1 November 2018. In addition, there are records of another six cattle that died or were euthanised at Wondalga from that time. [103] Fourteen cattle died or were disposed while at Forbes cattle yards. [104] I was not referred to any records of the number of cattle that died in transit.
5. As 581 cattle were sold, it seems there is a discrepancy of around 50 to 60 cattle compared to Mr Muller's count on 1 November 2018 after allowing for euthanised cattle. However, I cannot take this further in the absence of either party undertaking a more detailed reconciliation of the cattle numbers and records of the number of cattle who died in transit. It suffices to state that, given the pleaded cases, I am not satisfied that any discrepancies in the number of cattle affects the Council's entitlement to the relief it ultimately sought.
6. Second, on behalf of Meadowlands, it was alleged that the Council seized other cattle that were not on Wondalga on 17 October 2018 and brought them onto the property. I am not satisfied that this occurred but even if it did it does not affect the grant of the relief sought by the Council.
7. In support of Meadowland's contention an affidavit of Richard Brooks sworn 15 December 2020 was read. Mr Brooks said that in late October 2018 he mustered cattle on behalf of Mr Bowden on a paddock that bordered Wondalga that was owned by Mr Harry Moslu. In his second affidavit Phillip Bowden said that, prior to being at Mr Moslu's block, the cattle were mustered on a property known as "Moonriver" that he leased. [105] Mr Brooks said that on 22 October 2018 the boundary fence between Mr Moslu's property and Wondalga was cut and a gate left open allowing the cattle he was minding to escape onto a lane. [106] He said that he was approached by a man and following the approach he moved the cattle onto Wondalga. The parts of the affidavit that I rejected attempted to attribute responsibility for the moving of cattle to the Council. Hence that was not proven.
8. Mr Brooks also stated that he observed someone he believed to be a Council employee muster cattle from another neighbouring block (the "Stockland block") onto Wondalga. [107] Mr Muller denied doing so. [108] I accept his denial. I am also not satisfied that it was a Council employee but, even if it was, it could have been stock that wandered off Wondalga. Further, even if it can be accepted that the Council wrongly mustered stock from that property onto Wondalga, that is irrelevant to these proceedings. There is no evidence that they were owned by Meadowlands (or BKK). In the absence of such proof, they are not part of its claim and no claim is made by anyone else. On any view of the number of head of cattle that were impounded on Wondalga as at 17 October 2018 and were owned either by ASIC or Meadowlands, there were more than sufficient to justify the order sought by the Council in its cross claim.
9. Meadowlands also read an affidavit from Mr Moslu sworn 15 December 2020. He asserted that around 19 to 20 October 2018, 19 of his cattle were taken from his property by the Council and placed on Wondalga. Mr Muller denied doing so. [109] I accept his denial. I am also not satisfied that it was a Council employee. Otherwise, the same observation that applies to Mr Brooks evidence applies to Mr Moslu's evidence.
10. Third, on behalf of Meadowlands it was alleged that the Council's actions in impounding the cattle caused a potential sale of some of the cattle to be aborted. I am not satisfied that this occurred but even if it did it does not affect the grant of the relief noted below.
11. In support of this contention an affidavit of Kerry Daley sworn 16 October 2018 was read. He said that in early October 2018 he inspected approximately 700 cattle on Wondalga. He said he identified 450 "female head of cattle" he wished to buy. He said he negotiated an agreed price, but the sale did not proceed as he was told the cattle impounded by the Council had to be sold by public auction. Attached to his affidavit was a document said to record the terms of the proposal which bears the date "29/11/2018". In his oral evidence he was asked when he received that document and he said, "might've been late November". [110] The stock and station agent, Mr Grayson, swore two affidavits dated 18 December 2020 one of which was wholly rejected as inadmissible. The admissible parts of the other affidavit confirmed that in October 2018 he was attempting to arrange a sale of cattle for Phillip Bowden.
12. This evidence takes the matter nowhere. There is no evidence that the existence of these negotiations was brought to the Council's attention. Moreover, Mr Daley's evidence suggests that his negotiations did not reach any substantial point until sometime after 20 November 2018. By that time Meadowlands had bound itself to the sale procedure set out in the consent orders which in turn reflected the requirements of the Impounding Act.
13. In his affidavit, Phillip Bowden asserts that, following the orders made on 26 November 2018, he received an offer to purchase the remaining cattle from Mr Grayson on behalf of two purchasers for $750,000. He asserted that the Council would not cooperate and insisted the sale proceed by way of public auction. [111] It is not clear whether this concerns Mr Daley's offer or a different offer to purchase the cattle. In any event it does not matter. There is no evidence that the Council was made aware of the negotiations. As noted, on 20 November 2018 Meadowlands bound itself to the sale procedure set out in the consent orders which in turn reflected the requirements of the Impounding Act
14. Fourth, it was contended that the Council did not provide adequate feed for the impounded cattle. I do not accept this contention. Mr Muller stated that when the cattle were impounded on 17 October 2018 the Council did not have any feed. [112] However, he said the cattle were fed in accordance with directions from Land Services and the RSPCA. [113] Mr Muller took delivery of feed organised by Mr Bowden prior to the impoundment. [114] He allowed Kevin Bowden access to Wondalga to feed the cattle. [115] Further, the Council tendered an invoice indicating that feed was purchased in late October 2018. [116]
15. Fifth, it appears to have been suggested that the euthanising of the cattle was carried out capriciously. If that is the suggestion, then I do not accept it. The Council tendered numerous documents confirming that the euthanising of cattle was carried out by or in accordance with the advice of the RSPCA. [117]
16. Sixth, there was a dispute about the presence of contaminated water on Wondalga and its effect on the agisted cattle. In his affidavit Phillip Bowden says that between July and October 2018 he experienced difficulties with the cattle on Wondalga as a result of sewerage effluent building up in the channels on the property which made the cattle sick when they drank from the channels. He said fish were found floating dead in ponds and the cattle became sick. [118]
17. Mr Muller said that, after the cattle were impounded, he learnt that the land was irrigated by BKK, Meadowlands or the Bowdens with contaminated water when it should not have been. [119] In response Mr Bowden claimed they were provided with a map by Shoalhaven Water advising them they certain areas could be used. [120] It is not necessary to resolve this dispute because, if Mr Bowden was so advised, then it was not the Council who provided the advice.
18. Otherwise, I am not satisfied that Mr Muller or the Council were aware of any difficulty with the cattle consuming contaminated water until after the cattle were impounded. Further under the Agistment Licence Agreement it was the responsibility of BKK to maintain the water channels on Wondalga free of pollutants. Otherwise it is clear is that, at the time the Council impounded the cattle, a number of them were sick from contaminated water and the Council incurred considerable expense in addressing that.
19. Seventh, it was contended that the Council was somehow responsible for the placement of asbestos on Wondalga. Mr Muller denied this and explained that the water authority replaced some old pipes containing asbestos while working on the sewerage treatment plant. [121] I accept that evidence.
20. Eighth, in his affidavit Phillip Bowden asserted that the Council cut out existing ear tags from the cattle and inserted other tags prior to their sale. [122] I do not accept that contention. It was accepted that the Council purchased some ear tags and supplied them to the sales agents at the time the cattle were transported to Yass and Goulburn. [123] However, there was no evidence that the Council removed any ear tags from impounded cattle.
21. Finally, I note that the Council adduced considerable evidence about the expenses it incurred in impounding and maintaining the cattle. It is clear that at the time they were impounded many of the cattle were in a poor state and significant cost was incurred by the Council in looking after them. However, in light of the above construction of the Impounding Act, that expenditure is not recoverable. Instead, an amount representing the fixed fees and charges is recoverable. That said, there was an inherent inconsistency in Meadowland's case in contending that the Council incurred too much expense in looking after the cattle but, despite that, it apparently neglected them in doing so.

Orders

1. In summary: (i) I am not satisfied that there was any agistment agreement between Meadowlands and the Council; (ii) As at 17 October 2018 neither BKK or Meadowlands had any entitlement to remain on Wondalga and the cattle that were on the property on that day were trespassing; (iii) On 17 October 2018, the Council was entitled to impound the cattle on Wondalga pursuant to s 12 of the Impounding Act; (iv) By 21 October 2018, the Council was obliged to remove the cattle to a "public" pound. Instead, it kept the cattle on a private pound it established at Wondalga. (v) No obligation arose on the Council to provide the cattle to Meadowlands. Instead, it was obliged to cause them to be sold by public auction or public tender. The vast bulk of them were sold by public auction; (vi) The Council is not entitled to recover its costs and expenses of impounding, maintaining and disposing of the cattle. However, it is entitled under s 25(1) of the Impounding Act to deduct from the net proceeds of sale the fees and charges of doing so calculated on the basis of recovering $36 for the maintenance of each head of livestock per day. This more than exceeds the net proceeds of sale of the cattle that were impounded.
2. I will make orders reflecting the above findings. As for costs I will make provision for the parties to exchange their proposed orders as to costs and submissions in support. Upon receipt of that material, I will determine whether costs can be determined on the papers or whether a further short hearing is required.
3. Accordingly the Court: 1. Orders that the plaintiff's statement of claim be dismissed; 2. Declares that the Cross-Claimant, Shoalhaven City Council, is entitled to deduct the fees and charges payable in respect of the maintenance of the cattle impounded on the property in the Shoalhaven area known as Wondalga Farm on 17 October 2018 calculated at the rate of $36 per item of livestock per day from the net proceeds of the sale of the livestock paid into Court in these proceedings; 3. Directs that the amount of $381,707.77, paid into Court in these proceedings, and any interest thereon, be paid to the Cross-Claimant; 4. Stays order (3) for 28 days from today; 5. Orders that the Cross-Claim be otherwise dismissed; 6. Orders that on or before 23 September 2021 each party to file and serve their proposed order as to costs and any submissions in support of the proposed order that are not to exceed four pages; 7. Orders that there be liberty to apply on two days' notice.

Endnotes

1. Court Book ("CB"), cross-claim at [19].
2. CB, cross-claim at [20].
3. CB 348 at 355 and 366.
4. CB 357.
5. CB 357, clause 10.2.
6. CB 354.
7. CB 355.2.
8. CB 356.2.
9. CB 69.
10. CB 53 at [11].
11. CB 369 at 375.
12. CB 96.
13. CB 54 at [21].
14. CB 55 at [22] to [24] and CB 99.
15. CB 55 at [24].
16. CB 100.
17. CB 55 at [25].
18. CB 60 at [62].
19. CB 270.
20. CB 272.
21. CB 225 at [19].
22. CB 219 at [6].
23. CB 57 at [44].
24. CB 107.
25. CB 277.
26. CB 280.
27. CB 285.
28. CB 227 at [27].
29. CB 292 at [28].
30. CB 376.
31. CB 376.
32. CB 378.
33. CB 379.
34. CB 113.
35. CB 381.
36. CB 385.
37. CB 62 at [68].
38. CB 383.
39. CB 292 at [36]; CB 385.
40. CB 388.
41. CB 293 at [41].
42. CB 294 at [42].
43. CB 395.
44. CB 397.
45. CB 399.
46. CB 63 at [75].
47. CB 294 at [47].
48. CB 924 at [114, CB 1222.
49. CB 63 at [77].
50. CB 401 at 402.
51. CB 123.
52. CB 401.
53. CB 403.
54. CB 406.
55. CB 409.
56. CB 412, 413, 414, 415-416, 418, 420, 422, 425, 426ff.
57. CB 298 at [72].
58. CB 637.
59. CB 129 - It was admitted in these proceedings subject to a direction under s 136 that it was not admitted as to the truth of its contents.
60. CB 129 at [3].
61. CB 130 at [8].
62. CB 640.
63. CB 639.10.
64. CB 639.1.
65. CB 642.
66. CB 643.2.
67. CB 644.
68. CB 645.5.
69. CB 645.7.
70. CB 413 to CB 414.
71. CB 52 at [1].
72. CB 64 at [90].
73. CB 64 at [90].
74. Tr 16/08/2021 p 37.8.
75. Tr 16/08/2021 p 36.
76. Id.
77. CB 97.
78. CB 300 at [81]; CB 647.
79. CB 650.
80. CB 300 at [83]; CB 652].
81. CB 300 at [85]; CB 658 to 661.
82. CB 301 at [86].
83. CB 427 to 430.
84. CB 301 at [88]; CB 686 to 694.
85. CB 694.
86. CB 700.
87. CB 301 at [93].
88. CB 301 at [94].
89. CB 698.
90. CB 699.
91. Tr 16/08/2021, p 26.
92. CB 59 at [50].
93. Affidavit of Heath Muller sworn 6 September 2018 at [8]; CB 289; Affidavit of Heath Muller sworn 8 May 2020 at [112] (CB 924); CB 977 to 1221.
94. Exhibit A.
95. Exhibit A at page 130.
96. Tr 18/08/2021 p 147.
97. Tr 17/08/2021 p 83.
98. Tr 17/08/2021 p 84.40.
99. Tr 17/08/2021, p 86.34.
100. CB 298 at [69].
101. Tr 17/08/2021 p 85.1.
102. Tr 17/08/202 p 84.19.
103. CB 434 to 440.
104. CB 694.
105. CB 140 at [15].
106. Affidavit of Richard Brooks sworn 15 December 2020 at [7].
107. Affidavit of Richard Brooks sworn 15 December 2020 at [15].
108. Tr 17/08/2021, p 88.48.
109. Tr 17/08/2021, p 88.48.
110. Tr 16/08/2021, p 57.43.
111. CB 64 at [91].
112. Tr 17/08/2021, p 99.47.
113. CB 290 at [21].
114. CB 905 at [18] to [19].
115. CB 865 at [11]; Tr 17/08/2021, p 100.
116. CB 769.
117. eg CB 434 to 440.
118. CB 60 to 61 at [64].
119. Tr 17/08/2021, p 78.
120. Tr 17/08/2021, p 78; Exhibit A.
121. CB 290 at [18]; Tr 17/08/2021, p 74; p 92.
122. CB 64 at [93].
123. Tr 17/08/2021, p 79 to 80 (Muller); p 104 (Cronk). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2021