Roxo v Normandie Farm

Judgment

1. HIS HONOUR: On 8 July 2015 Schmidt J made orders giving possession of certain lands at Bungonia to the plaintiff: Roxo v Normandie Farm (Dairy) Pty Ltd [2015] NSWSC 895. On 14 September 2015 the defendant sought a stay of her Honour's order. Bellew J granted a stay on that occasion "until further order of the court" and brought the proceedings back before him on 16 September 2015, at which time he stood the proceedings over for hearing by the duty judge on 30 September 2015. The proceedings came before me on that day for that purpose.
2. The defendant relied upon two affidavits sworn by Julia McKay on 14 September 2015 and 29 September 2015 respectively. Ms McKay was not cross-examined on either affidavit.
3. Ms McKay's evidence was that the defendant runs or conducts a substantial dairy farming operation from the property. There are currently approximately 70 dairy cows there that require milking twice daily. There are other animals on the property as well. The substantially uncontradicted evidence is that Ms McKay has nowhere to place these animals if the defendant is required to vacate the property and that the defendant's dairy enterprise could be destroyed or fundamentally compromised if they had to be removed. Her evidence was relevantly as follows: "27 If a stay is not granted I believe I will suffer prejudice because my eviction from the property and that of the livestock is an irreversible change of circumstances that could not be rectified. This is because I would have to sell all the livestock prior to leaving the property. Alternatively, I would need to lease a functional dairy facility to conduct my business, which is the supply of raw milk products to herd sharers in the Australian Capital Territory, the Southern Highlands and the Southern Tablelands. 28. In order to sell the livestock I would have to arrange a clearance sale on the farm, establish the pregnancy status of all the animals and gain health certificates in respect Johne's disease, which is a restricted disease that is prevalent in dairy cattle. A certificate in respect of Johne's disease is required before cattle are moved from a particular area and I do not know how long it takes do [sic] receive to a negative clearance. 29. I have about 70 dairy cows including calves on the property. I also have 8 horses, 5 chickens, 2 dogs and 2 cats. I live alone, but I have wwoofers (willing workers on organic farms), who come and work and live on the farm from time to time. Wwoofers usually stay for up to three months to learn about agriculture and Australia in general. 30. If I were required to vacate and lease a dairy farm at short notice I would need access to a hygienic premises for milking, storage of product in a convenient location for delivery to the regions described in paragraph 27 above. I do not know of any dairy farms that are presently available in reasonable proximity to the property. 31. I would require at least six months to vacate the farm, re-establish my business and find a new home. 32. If I were required to vacate the property on short notice, it is likely I would lose my herd sharing customers, I would not be able to source animals of the same quality in terms of bloodline and productivity. It would be the end of my business as I would not be able to re-establish the business in the form in which it currently operates. Many of the improvements I have made to the property and the assets of the business are tied to the land, for example the fixed machinery (pumps and irrigation), dairy sheds and yards. 33. The detriment to the business caused by vacating the property could not be remedied by a costs order in my favour in the event I were successful in the appeal against the judgment."