Northern Pastoral Development Company v Banibi Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 35 of 2010

BETWEEN: NORTHERN PASTORAL DEVELOPMENT COMPANY AS TRUSTEE FOR THE ELSEY PASTORAL TRUST

JUDGE: MANSFIELD J DATE: 23 JUNE 2011 PLACE: ADELAIDE (VIA VIDEO LINK WITH DARWIN)

REASONS FOR JUDGMENT 1 I have already made orders providing for summary judgment for the Applicant in these proceedings: Northern Pastoral Development Company v Banibi Pty Ltd [2011] FCA 610. The First Respondent has apparently abandoned whatever interest it had in "its" cattle on Elsey Station, because security over that interest is held by Permanent Custodians Limited (herein I refer to Permanent Custodians Limited as the Second Respondent, noting that I am about to join it as the Second Respondent). The orders made were in terms of an injunction of limited duration restraining the First Respondent from mustering or in any way interfering with or attempting to muster any cattle on Elsey Station until 30 September 2011. The consequence was that, in relation to the cattle on Elsey Station, the Applicant would be in a position to muster the cattle under the supervision of an independent expert and to allocate the mustered cattle to its own herd or to the First Respondent's herd (the Banibi herd) by 30 September 2011. 2 At the time of those final orders, to recognise the derivative interest of the Second Respondent in the Banibi herd (as a result of the Second Respondent claiming security over some of the cattle in possession of the Applicant at Elsey Station) concerning the proper allocation of the cattle to be mustered on Elsey Station, I directed service of those orders on the Second Respondent and I gave the First and Second Respondents liberty to apply for further directions. The Second Respondent then took up the cudgel of protecting its interest in the Banibi herd. 3 Correspondence between the Applicant and the Second Respondent, demonstrated that the Second Respondent has not agreed to the proposed muster taking place in the proposed manner. It has, by notice of its concerns with the Applicant, put the Applicant in a position where it wants to proceed with the muster but is reluctant to do so in face of those concerns. 4 Hence the Applicant has applied to join the Second Respondent as a party (a step which is not resisted) and for an order authorising it to proceed with the muster. The Second Respondent sought an adjournment of the muster for three weeks. 5 It was not contentious between the Applicant and the Second Respondent that a muster of the cattle on Elsey Station has to occur at some point. The points of difference between the parties included whether the terms of the muster as proposed by the Applicant were sufficiently thorough to effect the muster reliably and then to allocate the cattle mustered between the Applicant's herd and the Banibi herd. Those matters were addressed at a considerably earlier time when the First Respondent was an active party to the proceedings and when the Second Respondent's interests were, for these purposes, the same as those of the First Respondent. It is intention of the Second Respondent to further explore agreement about these issues which explains the sought adjournment. 6 There was also an issue as to the delivery of relevant documents by the Applicant to the Second Respondent, which were said to be an essential precursor to any muster, so as to assist the Second Respondent at assessing the appropriateness of the proposed procedure and to permit a proper consideration of how the muster should be carried out. In the absence of production of this documentation, the Second Respondent considered it was not in a position to be properly informed so as to participate fully and comprehensively at the proposed meeting. 7 Essentially, the conflict between the Applicant and Second Respondent boils down to a question of working out who owns or has an interest over and in what cattle, and how identification of categories of cattle should be properly and fairly carried out. 8 It is the parties' inability to negotiate a satisfactory interim arrangement, and the urgency said to attend the mustering of the cattle, which prompted the Applicant's notice of motion dated 16 June 2011. 9 What is sought by that motion is to join the Second Respondent to the proceedings, to add a claim for final orders to identify and give effect to (including by separating) the parties interests in the cattle on Elsey Station, to permit the Applicant to muster all the cattle on Elsey Station without interference from the Second Respondent, to establish a procedure for identifying which cattle all parties accept are owned by the Applicant and which cattle belong to the First Respondent (subject to the security or otherwise framed claimed of the Second Respondent over that cattle) and hence which cattle whose ownership is disputed, and finally, to make directions for the identification and determination of the issues concerning title to the cattle. 10 I have had the benefit of very helpful submissions in this matter, and I propose to make orders along the lines of those drafted by the Applicant. I do so notwithstanding the application of the Second Respondent for an adjournment of the application for three weeks for a few reasons. 11 First, because I am satisfied that there is a significantly great degree of urgency to deal with the matter before that time. Second, because the concerns of the Second Respondent which have been identified are concerns which, in my view, the Second Respondent, aware of its interest through the First Respondent, might have addressed earlier, either through the First respondent or as a complement to the First Respondent, as it was aware of other issues between the Applicant and the First Respondent which initially gave rise to these proceedings. At a practical level, it had a real interest in ensuring the muster previously contemplated was effective to identify all cattle to be mustered and that the herd allocations were appropriate. 12 The Second Respondent's concerns involve two aspects. First, to make sure that the processes necessary to mustering the cattle are comprehensive. Presently I see no real reason why the interests of either the First or the Second Respondent will not be properly protected by the proposed orders and the proposed procedure to undertake to muster the cattle. Second, concerns were conveyed over the proper identification of the Banibi herd as distinct from the Applicant's herd. Since the identification of the mustered cattle will occur towards the end of the process, if the Second Respondent is dissatisfied with the procedure which is presently proposed, that concern can be renewed by the liberty to apply on reasonably short notice provided in these orders. In the meantime there is no present impediment to the bringing in of the cattle. 13 In that context I do not see that there is any real prejudice to the Second Respondent by doing so because of the liberty to apply and other orders which strike a balance between providing a framework that gives the parties certainty and provides for flexibility to accommodate changes circumstances. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.