Walsh v K.C. & W.L. Brain Pty Limited

Judgment

1. HIS HONOUR: The final claim made by the defendant is made formally in the pleadings. In the First Amended Cross-claim filed by the defendant on 14 May 2021 there is this claim: "Ewe Agistment Costs Claim 39. In Breach of Clause 17 of the Dalree Sale Contract, following the settlement of the sale of Dalree to the cross-claimant on 22 March 2017, the cross-defendant failed to remove 1,000 ewes and their progeny from the property from 22 March 2017 to 29 December 2017. 40. From 22 March 2017 to about 26 - 29 December 2017, the cross-claimant incurred the agistment costs of maintaining the 1,100 ewes and their progeny because the cross-defendant failed to remove from Dalree in breach of the Dalree Sale Contract. 41. From 22 March 2017, 17 to 29 December 2017, the cross-claimant requested the cross-defendant remove the 1,100 ewes and their progeny from Dalree. 42. From 22 March 2017 to 29 December 2017, the cross‑defendant refused and failed to remove the cross-defendant's ewes and their progeny from Dalree. 43. As a result of the cross-defendant's failure to remove the 1,100 ewes and progeny from Dalree from 22 March 2017 to 29 December 2017, the cross-claimant suffered loss and damages. PARTICULARS (a) From 22 March 2017 to 29 December 2017 the cross-claimant incurred costs of $1.50 plus GST per week for each of the 1,100 ewes and their progeny which the cross-defendant failed to remove from Dalree, being a total cost to the cross-claimant of approximately $66,000 plus GST. 44. The cross-defendant is liable to the cross-claimant in the sum of approximately $66,000 plus GST for the loss suffered by the cross‑claimant as a result of the cross-defendant's failure to remove the 1,100 ewes and their progeny from Dalree from 22 March 2017 to about 29 December 2017."
2. In the defence to the Amended First Cross-claim filed on 20 August 2021 the defendant pleaded this: "18. The Cross-Defendant denies the allegations set out in paragraphs 39, 40, 41, 42, 43 and 44 of the amended cross-claim and states that: '(a) The first request made by the cross-claimant for the removal of the cross-defendant's stock was in September 2017.' PARTICULARS (i) Phone conversation from Bruce Simpson of Peppin Planners to cross-defendant in September advising of request. (b) The Cross-Defendant had 800 sheep and their progeny in a paddock of Dalree from 22 March 2017 to 29 December 2017 but states that the lack of available feed in the paddock meant that he had to supplementary feed these 800 head throughout 2017; (c) Says that the agistment fee of $1.50 per head per week can only be reasonably justified where the agistment includes feed such as lucerne; and (d) If the Cross-Defendant is required to pay $1.50 per head per week to the Cross-Claimant (which is denied) then he claims that this amount be reduced by the Cross-Defendant's costs of supplementary feed claimed on a quantum meruit basis in respect of: (i) 1,000 bales feed to supplement the feed [of] 800 sheep @ three bales to the tonne equals 333 tonne @ $200/tonne $66,000 (ii) 60 tonne of oats fed to the sheep @ $200/tonne equals $12,000 (iii) the Cross-Claimant yarded the Cross-Defendant's sheep and left them without water in hot conditions which resulted in the death of a prized ram $2,000. 20. Further, in relation to paragraphs 39 to 44 of the amended cross‑claim of claim and in answer to the amended cross-claim as a whole, the Cross-Defendant: (a) relies upon the facts and matters pleaded in paragraphs 13 to 29 of the amended statement of claim; and (b) claims by way of equitable set-off or a set-off pursuant to s 21 of the Civil Procedure Act the sum of $391,647.60."