Practice and Procedure - claims for damages for contraventions of Trade Practices Act - claim for return of horses joined - respondent asserting lien over horses - motion for summary judgment for return of horses - whether summary judgment should be entered for part of the claim.

By notice of motion filed on 8 September 1989 the applicants seek by way of summary judgment under FCR O.20, r.1, a declaration that they are entitled to the immediate possession of a thoroughbred mare "Bold Storm" and her unnamed colt foal by "Lakeland", and a mandatory injunction requiring the respondent to deliver the two horses to the applicants.

2. These proceedings were commenced on 5 February 1987 and are notable for the slow pace at which they have progressed. By the amended statement of claim filed on 28 June 1989, insofar as it is material to the present application, the applicants allege that they first communicated with the respondent in February 1984 in response to reading an advertisement in a magazine distributed throughout Australia by post. The advertisement concerned the breeding services of a stallion named "Brazen Bay" which was standing at a stud controlled by the respondent in New South Wales (which for convenience I shall refer to as "the respondent's stud"). That and other communications between the parties were by telephone. In or about the month of June 1984 the applicants allege that the respondent agreed orally with them that Bold Storm, which was then in foal to Lakeland, would be transported at the applicants' expense to the respondent's stud and there agisted; that Bold Storm would be serviced by Brazen Bay after the birth of the Lakeland foal; that the applicants would pay to the respondent a service fee of $1,250 (by inference on a positive pregnancy test) but otherwise would not be charged "a usage fee"; that the respondent would deliver up to the applicants on demand Bold Storm and its Lakeland foal; and that the applicants would be charged agistment fees of $7 per day in respect of Bold Storm and $5 per day in respect of the Lakeland foal after it was born. Other terms of the agreement alleged are not presently material. Bold Storm arrived at the respondent's stud on 1 July 1984; and the Lakeland foal was born on 3 September 1984.

3. The applicants allege various breaches of the agreement. The amended statement of claim formulates claims in respect of those breaches, and also for breaches of other agreements unrelated to the two horses referred to in the notice of motion. It is further alleged that the respondent made various representations which were misleading or deceptive or were likely to mislead or deceive in contravention of s.52(1) of the Trade Practices Act 1974 which induced the applicants to enter into the agreements; and further that the respondent in trade and commerce made a false representation with respect to the price of services contrary to s.53(e).

4. Although the applicants' pleadings were altered in several respects by the amended statement of claim, the applicants at all times since the commencement of the proceedings, have sought a declaration that they are entitled to immediate possession of the mare Bold Storm and the Lakeland foal. It is that part of the claim on which summary judgment is now sought.

5. The applicants allege that in September 1985 and on or about 17 October 1985 they demanded that the respondent deliver up possession of Bold Storm and the Lakeland foal, and that the respondent refused to do so. The respondent has not at this stage filed a defence to the amended statement of claim (although on 6 June 1989 he was given leave to do so, and on 31 July 1989 was directed to do so by 28 August 1989). However, in his defence and cross-claim filed on 29 March 1989, in response to similar allegations concerning the two horses the respondent admitted that the applicants had demanded delivery on the dates alleged, and pleaded that "he has exercised a lien over the horses". The respondent's defence and cross-claim also admitted, or did not put in issue, that this Court has jurisdiction to determine the matters in issue, and that there had been an agreement between the parties as to the agistment of the subject horses.

6. The respondent's cross-claim for $27,943 is for agistment fees for Bold Storm and the foal together with 15 farrier treatments at $18 each and 15 worming treatments at $20 each for each horse. Those fees were calculated to 28 March 1989, and a claim for continuing fees is made. The cross-claim does not include any claim for service fees or usage fees of the respondent's stallion.

7. The notice of motion came on for hearing on 19 October 1989. It was supported by an affidavit from the first applicant. After referring to the admissions made by the respondent in his defence to the original statement of claim the applicant deposed that the agreement between the parties did not specifically deal with the issue of whether the respondent could exercise a lien and if so in what circumstances. The respondent in his pleadings did not allege an express term dealing with this topic. The first applicant has deposed to his belief that the respondent is not entitled to retain possession of the horses, the present whereabouts and state of health of which are unknown to him. He then describes the prejudice which he is suffering by the respondent retaining the horses.

8. No answering affidavit has been filed by the respondent. When the notice of motion was called on Mr Daenke, a solicitor from the Adelaide firm which is on file as South Australian agent for the respondent's solicitors in New South Wales, appeared and announced that his firm's instructions had been terminated, and that the respondent's solicitors in Sydney would shortly be filing documents under O.45, r.7 that they were no longer acting. After acknowledging that the notice of motion and supporting affidavit had been duly served on his firm well before the hearing, Mr Daenke withdrew. Counsel for the applicants proceeded to present his argument.

9. The short point advanced by the applicants is that at law the respondent is not entitled to exercise a lien for agistment fees or for the farrier and worming treatments claimed by him. This being so, the admitted refusal by the respondent to return the two horses is unjustified, and the applicants contend that they are entitled to orders for the delivery up of the horses to them forthwith. The applicants envisage that the claim (and cross-claim if the respondent takes any further steps in the proceedings) would then continue; and the competing money claims of each side would be determined, assessed and adjusted one against the other. At the conclusion of his argument counsel for the applicants sought to have the notice of motion adjourned to enable him to file a further affidavit because, as a matter of exhaustive precaution, he wished to develop an additional argument that even if the respondent could have claimed a lien, it would have been lost when the respondent refused to accept the tender of moneys on 30 September 1985 sufficient to cover outstanding treatment fees when the demand for the horses was made. This argument had been anticipated by the defence to cross-claim, but not supported by affidavit evidence. The application was granted and the notice of motion adjourned to 9 November 1989.

10. An affidavit by the first applicant apparently intended to constitute the necessary evidence to support this additional argument was filed on 19 October 1989 and served the same day on the Adelaide solicitors on file as representing the respondent, that is on the solicitors who had earlier that day informed the Court that they were no longer acting for the respondent. I will return later to the affidavit after dealing with the principal argument in support of the notice of motion. At this point I record that on the resumed hearing on 9 November 1989 Mr Daenke again appeared, and informed the Court that he was still awaiting the O.45, r.7 documents, but anticipated they would be filed shortly. He confirmed that his instructions had been terminated, and that the solicitors in Sydney who had instructed him had ceased to act for the respondent.

11. The nature of an agistment contract is described in 2 Halsbury's Laws of England (4th ed.) paras. 214 and 216 as follows:

of agistment arises where one man, the agister,

takes another man's cattle, horses or other

animals to graze on his land for reward, usually

at a certain rate per week, on the implied term

that he will redeliver them to the owner on

demand. Agistment is in the nature of a contract

of bailment; it confers no interest in the land

and therefore does not require to be evidenced in

writing.

...

216. Rights of agister. In the absence of

special agreement, the agister has no lien upon

the animals he agists, for he expends no skill

upon them; he merely takes care of them and

supplies them with food, and his remedy is to

bring an action for the price of grazing. ..."

12. In the present case the first applicant has deposed that there was no special agreement. It seems there is no statutory provision which would create in the respondent a lien over the horses; and it may be accepted that the law recognises no customary general lien which an agister could claim over horses: C.L. Pannam "The Law of Horses" 2nd ed. at p 82. As regards a particular lien, the general principle was laid down by Parke B. in a reserved judgment of the Court of Exchequer Chamber in Scarfe v. Morgan [1838] EngR 253; (1838) 4 M & W 270 at 283 [1838] EngR 253; (150 ER 1430 at 1436). He said :

"The principle seems to be well laid down in Bevan

v. Waters (1828) Mo. & M. 235, by Lord Chief

Justice Best, that where a bailee has expended his

labour and skill in the improvement of a chattel

delivered to him, he has a lien for his charge in

that respect. Thus, the artificer to whom the

goods are delivered for the purpose of being

worked up into form; or the farrier by whose

skill the animal is cured of a disease; or the

horsebreaker by whose skill he is rendered

manageable, have liens on the chattels in respect

of their charges."

13. In Scarfe v. Morgan it was held that a farmer had a particular lien over a mare covered by his stallion, as the mare became more valuable by proving in foal. In Bevan v. Waters, referred to by Parke B., and in the subsequent case of Forth v. Simpson [1849] EngR 641; (1849) 13 QB 680, racehorse trainers were held to have liens over horses which had been improved by their work and labour in educating and training the horses to a standard ready for racing.

14. However, where under a contract of agistment the agister merely feeds, cares for, and maintains an animal, the agister has no lien: see Jackson v. Cummins & Ors [1839] EngR 136; (1839) 5 M & W 342 (151 ER 145); Grazing & Export Meat Co. Ltd v. Anderson & Anor. (1976) 1 NZLR 187 and In re Southern Livestock Producers Ltd (1964) 1 WLR 24. In Judson v. Etheridge [1833] EngR 144; (1833) 1 Cromp & M 743 (149 ER 598) the right to a lien was denied even where the care of a horse involved it being stabled. The question before the Court concerned the sufficiency of the pleading. According to the declaration the defendant claimed a lien for unpaid fees due to him for the plaintiff's horse which he accepted "to be stabled and taken care of, and fed and kept by the defendant for the plaintiff for remuneration and reward". It was held that the plea could not support the lien.

15. In In re Southern Livestock Producers Ltd a farmer had agreed with a company to "house, feed, care for and arrange for the proper servicing and farrowing of" a large number of sows, gilts and pig litters. The company went into liquidation and the farmer sought to exercise a lien on the herd for sums expended in feeding and caring for them. The headnote summarises the decision in these terms :

"Held, that unless a bailee could establish

improvement he could not sustain a claim to a

particular lien; that a farmer did not improve a

flock or a herd of animals by the mere supervision

of the natural increase, however much skill and

care was employed in the process; and that,

therefore, while the farmer was required to, and

did, employ labour and skill in his 'care' of the

pigs and their litters under his agreement with

the company, he had not made out his claim to have

had a lien on the pigs in his possession, and had

no charge on the proceeds of their sale."

16. In reaching his decision Pennycuick J. applied the decisions of Judson v. Etheridge and Jackson v. Cummins. As to the argument relating to natural increase the learned judge said at pp 28-29 :

"Mr. Sunnucks, for the farmer, contends that one

must look at the herd of pigs as a whole and that

the agreement provides for the improvement of the

herd as a whole by the production of litters. I

agree that one must look at the herd as a whole

and not pig by pig, and that is, indeed, accepted

by Mr. Figgis. But when one does look at the

herd as a whole, one finds that the production of

litters results from the natural properties of the

sows in co-operation with the boars supplied by

the company, and I do not think this production of

litters could fairly be described as an

improvement effected by the farmer. What the

farmer does is merely to look after the herd as it

increases from other causes."

17. In the present case the respondent could not maintain a lien on either horse based on the notion that the delivery of the Lakeland foal constituted an improvement.

18. It is clear that the respondent does not have a lien for agistment fees claimed by him over the horses. However, it is apparent from the respondent's cross-claim that he seeks to exercise a lien not only in respect of the agistment fees but also for the fees for farrier and worming treatments for both horses. It will be noted that Parke B. in one of the examples given by him in Scarfe v. Morgan said that "a farrier by whose skill the animal is cured of a disease" would have a lien. In speaking of the horse cases, Bayley B. in Sanderson v. Bell (1834) 2 C & M 304 at 311-312 [1834] EngR 290; (149 ER 776 at 779) said :

"In the case of the livery-stable keeper, who does

nothing to the horse except supplying him with hay

and oats, there is no lien; but where work is

done by training a horse, there is a right of

lien. In the case of a livery-stable keeper who

dredged a horse, if the claim for dredging could

be separated, in that respect there might be some

right of lien; but, if an entire claim compounded

of feeding and dressing is set up, it must attach

for both."

19. The examples of the farrier and the livery-stable keeper suggest that in certain circumstances treatments of the kind allegedly provided by the respondent to the subject horses may give rise to a lien. If a horse were given into the possession of a farrier for the purpose of trimming its feet, or into the possession of a veterinary surgeon for the purpose of worming it, the farrier or the veterinary surgeon could probably maintain a lien for the payment of their fees: C.L. Pannam "The Law of Horses" 2nd ed., at p 81. In those cases, having regard to the purpose for which the animals were bailed, and to the intended duration of the bailment, it is not difficult to conclude that the bailees have expended labour and skill in the immediate improvement of the animals although the benefit of the improvement may gradually disappear with time. In my opinion, however, the situation is quite different where a horse is given into possession of an agister who is to feed, care and maintain the horse on a long term basis. The duty of the agister as a bailee for reward, is to take reasonable care of the horse. In Smith v. Cook (1875) 1 QBD 79 at 81, Blackburn J. said :

"The defendant is sued as an agister of horses, and

although such an agister does not insure the

safety of the horses entrusted to him, he is bound

to take reasonable care of them, and if they are

killed through his negligence, he is liable."

20. It may be added that if a horse falls into ill health or suffers injury through neglect, the agister is liable. See also Turner v. Stallibrass & Ors (1898) 1 QB 56 and Coldman v. Hill (1919) 1 KB 443 at 451.

21. The respondent's obligation to care for and maintain the horses - that is to keep them in ordinary health and condition - would require that they be periodically treated for worms, and have their hooves periodically trimmed and attended to. Such treatments are part and parcel of maintaining the horses, and in no relevant sense bring about an improvement. In the circumstances of this case, in my view the expenditure periodically of money on farrier and worming treatments on the two horses, which were not in training, gives rise to no lien in respect of the fees for those treatments.

22. I think a close analogy exists between the circumstances of this case and Hatton v. Car Maintenance Company Ltd (1915) 1 Ch 621. There, the owner of a car had an agreement with a company under which the company was for three years to maintain the car and its accessories, provide a driver who was to be the company's servant, and do the necessary repairs. The owner was to pay the company a fixed annual sum up to a limited mileage, and at a rate for every mile beyond the limit. An amount having become due by the owner under the agreement, the company took possession of the car and claimed a lien. Sargant J. at pp 623-624 said :

"It was said by Mr Crossfield that whenever an

article is repaired, the repairer gets a lien on

the article for the amount of his charges. Well,

I do not dissent at all from that view of the law,

assuming that the repairer gets the article in his

shop for the purpose of repair and by that repair

improves it, as he would ordinarily do. But

certainly I cannot find anything in the

authorities which have been cited to me to show

that, if what the contractor does is not to

improve the article but merely to maintain it in

its former condition, he gets a lien for the

amount spent upon it for that maintenance. The

cases with regard to horses seem to point entirely

the other way, because it is clear that a

jobmaster has no lien at all for the amount of his

bill in respect of feeding and keeping a horse at

his stable, whereas, on the other hand, a trainer

does get up a lien upon a horse for the

improvement which he effects to the horse in the

course of training it for a race."

23. Reference may also be made to Helton v. Sullivan (1968) Qd R 562 where it was held that work and labour expended on mustering, culling, ear tagging, and branding cattle was insufficient to confer a lien over them.

24. Upon the primary argument presented by counsel for the applicants I consider they have made out their entitlement to an order for the immediate delivery up of possession of the horses to them. It is therefore unnecessary to consider the further affidavit filed in support of the additional argument that the respondent would in any event have lost any lien he might have had by reason of his non-acceptance of the tender of certain moneys to him on 30 September 1985. That argument, it seems to me, would face a number of difficulties. I am unable to find the support for it which counsel for the applicants seeks to draw from the decision in Scarfe v. Morgan. Further, the affidavit of 19 October 1989 for the most part is based on information and belief and is not in proper form for the purpose of an application under O.20, r.1. And I am also concerned that it may not have come to the attention of the respondent.

25. The procedure of summary judgment is an exception to the normal course of procedure in an action. The Court always retains a discretion to refuse summary judgment, and I was at first troubled by the delay between the commencement of these proceedings and the filing of the notice of motion seeking summary judgment. However, I am now satisfied that the relief claimed by the applicants in the notice of motion should be granted. The defendant is in gross default with compliance with directions as to interlocutory steps. He has not filed a defence to the amended statement of claim, and, of more importance, he has not given discovery even though on 31 July 1989 time was extended for his compliance with earlier orders for discovery to 11 September 1989. The applicants have already waited too long for the relief to which they have now established a clear entitlement.

26. The applicants acknowledge that they must meet the cost of taking delivery of the horses, and propose to make arrangements to do so with a recognised stock transporting company. A difficulty in framing the order arises as the applicants do not know the whereabouts of the horses. I propose therefore to make orders in the following terms:

1. That this order be served personally upon the

respondent.

2. That forthwith upon service of this order the respondent

do disclose to the person serving him the present

whereabouts of the horse "Bold Storm" and the colt by

Lakeland out of "Bold Storm" referred to in the

pleadings in this action.

3. That not sooner than seven (7) days nor more than

fourteen (14) days from the time of service of this

order upon him the respondent do deliver up possession

of each of the said horses to the applicants or their

authorised agent.

4. That within four (4) days of service of this order upon

him the respondent do nominate by facsimile addressed to

Mr D.S. Willson, Lee and Partners, facsimile number (08)

2318522 a reasonable place and a reasonable time where

and when he will deliver up possession of the said

horses to the applicants or their authorised agent in

compliance with this order, the place to be one

reasonably accessable to a stock transport carrier.

5. That the respondent pay to the applicants their costs of

and incidental to the notice of motion and this order.

6. That there be liberty to both parties to apply.