Loss caused by cattle dying - 9 breeding cows - 5-year forecast

Loss of opportunity because of agistment agreement terminating early

1. Weber further claims reimbursement of $3,380 for expenses (Reimbursement expenses).
2. Carkeek and Lorraine have counterclaimed against Weber for expenses of $156,000. The claims relate to arrears of rent for the house and outstanding agistment fees.

1. Weber called no other witnesses other than himself.
2. Carkeek, Lorraine, Mr Cutler (advisor), Scott Campbell (stock agent) and Dr Miller (Veterinarian) gave evidence on behalf of the respondents.

1. In relation to each of the agreements I must decide
   1. Who were the parties?
   2. Has the agreement been breached?
   3. If yes, what is the compensable loss and damage?
2. In relation to the unarticulated claim for negligence and the unconscionable conduct claim, I must decide whether these claims have been made out.

1. Mr Weber's evidence in relation to the house/work agreement can be summarised as follows:
   1. He met Carkeek and Lorraine in early April 2016. They were looking for someone to help on the property and had a house which their son recently vacated available on the property;
   2. He agreed with Carkeek that in exchange for him providing 20 hours a week work valued at $500 (20 hours x $25/hour) he would live in the house (valued at $200 rent per week), agist his four horses (valued at four x $25 per week= $100), have a weekly allowance for horse feed of $100, electricity of $30 and fuel of $70. The arrangement was for a minimum of five years. He would not have agreed to the arrangement if it was less than five years;
   3. He did not know that Alison was a partner in business with Lorraine and Carkeek;
   4. He moved into the property with his horses and two dogs;
   5. For the six -month period to 31 December 2017, he worked 104 hours being a shortfall of 416 hours under the agreement. The value of 416 hours at $25/hour is $10,400. He used $1,468 worth of fuel, horse feed and electricity in that period whereas the contra deal provided for him to utilise $200 per week. He is entitled to credit $3658 against the $10,400 leaving him with a liability of $6734 to Carkeek and Lorraine for this period;
   6. He stopped work on the property in December 2017. He owes something for rent from this date;
   7. In the first half of 2018, Carkeek and Lorraine tried to evict him from the house knowing he was in financial difficulty because they had not repaid loans owing to him. This is an example of their unconscionable conduct;
   8. He was forced to vacate the property by 27 October 2018 notwithstanding that the agreement was for five years.
2. Carkeek's evidence was that: -
   1. He agreed with the arrangement as outlined by Weber but not for a five year term. He relied on Weber to keep a record of the hours worked each week;
   2. He accepts Weber's record of hours worked;
   3. Weber owes $19,500 for rent;
   4. He owes part of the property in his own name and the balance jointly with Lorraine.

1. The terms of the arrangement other than its duration and who entered into the agreement are not in dispute.
2. There was no evidence that Alison owned the house or the property when Weber was in occupation.
3. The agreement was not recorded in writing. There was little evidence about the partnership between Carkeek, Lorraine and Alison. There was referencing to "AD, EA & LK Carkeek" on some agistment agreements contained in the Tribunal book. Carkeek tendered a letter from ASB & Associates, chartered accountants dated 8 June 2017 which stated that Alison retired from the partnership on 31 March 2017. Alison was joined to the proceedings by Weber in July 2018.
4. Weber argued that Alison being a partner in the AD, EA & LK Carkeek partnership was bound by the actions of Carkeek. There was no evidence that the partnership had anything to do with the letting of the house or the running of the property. At best there is limited evidence that some agistment agreements were made with the partnership. In the absence of any other evidence Weber has not satisfied me that the agreement was with the partnership.
5. In the absence of evidence to prove that Alison was a party to the home/work agreement, I find that the agreement was with Carkeek and Lorraine as the owners of the property and not with Alison.
6. Weber admits he owes $6734 for rent up to 31 December 2017. He admits he did no work under the arrangement in 2018 and that he owes something for rent in 2018. He says the fee should be "$200 or $300 per week".
7. I accept the evidence of Weber which was not challenged by Carkeek that Weber did not get the benefit of horse feed, electricity or fuel in 2018. He did however get the benefit of house occupancy and horse agistment. These benefits were valued by the parties under the agreement at $300 per week.
8. On this basis, I find that Weber is liable to Carkeek and Lorraine for 40 weeks occupancy in 2018 at $300/week. This equates to $12,000.
9. Weber submitted that Carkeek and Lorraine are not entitled to claim this amount because on 11 October 2018 an order was made by the Tribunal that the respondents are to file any counterclaim by 15 October 2018 which is limited to the claim for agistment fees which forms the existing setoff in the defence. I do not agree.
10. The counterclaim seeks $156,100 for expenses of rent and agistment as pleaded as a setoff against monies owed.
11. The Points of Defence dated 28 September 2018 do not raise a set off for agistment fees or rent.
12. All parties gave evidence about the rental arrangement for the house and what rent remained outstanding. Weber admits owing $6734 for rent to 31 December 2017 and to owing rent until he vacated in October 2018. He said the rent should be $200 or $300 per week.
13. Had Carkeek, Lorraine and Alison made set off in the defence there would be no issue. They did not. The hearing however proceeded on the basis that they were offsetting rent against any money owed to Weber. This was clear at the outset and confirmed by Weber's admissions of his liability for rent
14. The Tribunal is not a Court and does not have procedural rules in the same detail as those that apply in the Courts. The rules of pleading do not apply.
15. There is no suggestion that Weber was taken by surprise in relation to Carkeek seeking to set off the rent due against the loan liabilities. The only ground for Weber objecting to the rent set off is based on the order made on 11 October 2018. The order limits the counterclaim. That does not prevent a later order allowing amendments to the counterclaim to raise other issues. The order does not however prevent the rent form from being raised as a set off during the hearing as part of the defence. Given Weber's acknowledgement of liability for rent it should be considered by me in the interest of justice and a fair hearing. There is no prejudice to Weber by reason of the rent set off not being specifically pleaded in the defence. It was open to Weber to seek an adjournment in relation to the rent issue, which he did not do. He was genuine and forthcoming in his acceptance that he owed rent.
16. A similar approach was taken by me in accepting a change in focus in Weber's case to address breach of agreement claims.
17. For the reasons stated Weber is liable to Carkeek and Lorraine under the house/work agreement in an amount of $18,734.

1. It is agreed that Weber lent Carkeek $100,000 (made up of several loans) on the basis that Carkeek would pay back the money and put Weber in the same position financially as if the money had not been withdrawn from Weber's superannuation fund.
2. This issue is whether all respondents are liable for the loans, and the extent of the liability.
3. Lorraine and Alison deny that the loans were to them.
4. Weber's evidence was that:
   1. There was no discussion with Lorraine or Alison before the loans were made;
   2. On 1 May 2016 Carkeek asked for a loan of $30,000. Carkeek agreed to pay back the loan with interest within two months;
   3. On or about 14 May 2016 he loaned all three respondents the $30,000 and deposited a further $20,000 into their nominated bank account to be used by Carkeek to buy cattle for him when there were buying opportunities. The arrangement did not proceed so the $20,000 was added to the loan making the first tranche of the loan, $50,000;
   4. Carkeek should have purchased 17 cows with the $20,000. The 17 cows were expected to produce 17 calves a year. The sale price of those calves each year was estimated to be $25,000 for five years. He claims to have lost $136,000 in lost sales and opportunity because Carkeek did not purchase the 17 cows;
   5. In early June 2016, Carkeek approached him for another loan. He said he had approvals for the refinancing of his existing farm loan and would immediately be able to pay back all loans together with interest from the refinancing. He said the refinancing had been approved and was subject to removal of a caveat and he would get the refinancing within a month. The refinancing did not occur as represented and this is an example of unconscionable conduct by Carkeek;
   6. Between 23 and 28 June 2017 he lent various amounts to Carkeek directly into his bank account totalling $45,000;
   7. On or about 18 July 2017, Carkeek asked him for a further $5000 promising to pay it 'next week" He transferred the money on 20 July 2017 directly into Carkeek's bank account. The money has not been repaid. The failure to repay the $5000 after saying it would be paid is an example of unconscionable conduct;
   8. On 4 January 2018, he realised the extent of Carkeek's significant farm debt. He asked Carkeek to repay the loans by the end of January;
   9. On 9 January 2018, Carkeek told him that he would be transferring $10,000 to him the next day. No money was transferred. This is claimed to be an example of his unconscionable conduct;
   10. He was forced to sell 37 cattle on 11 January 2018 because he needed money and Carkeek had not repaid the loans. Because the cattle had to be sold at weights less than the optimum sale weight, he lost $12960 on the sale;
   11. As at 29 January 2018, he "wasn't aware Mrs Carkeek was liable for the loan at this stage";
   12. He submitted that Lorraine and Alison were liable for the first loan tranche because, although Carkeek did not disclose at the time that there was a partnership, he used the money to pay a mortgage and "it stands to reason it was a partnership loan". He further submitted that because the second tranche of funds was used to pay farm loans they should be a liability of the partnership.
5. Carkeek's evidence was that:
   1. He accepts he owes $17,268 for interest up to 17 May 2018 on the first tranche of $50,000. He denies any interest is payable on the further tranches;
   2. He denies he agreed to take $20,000 from Weber and purchase cows for Weber. All purchases were arranged by Mr Campbell the stock agent and not by him;
   3. He borrowed the money in his personal capacity. Alison and Lorraine did not borrow the money;
   4. When he borrowed the first $50,000 he believed he had negotiated refinancing with the CBA and thought he could pay Weber back quickly. He says Weber asked at the time of the loan that it be repaid as soon as possible;
   5. He knew Weber was taking the funds from his superannuation account and he agreed to compensate Weber for any losses incurred. He thought Weber's agistment fees would be offset against the loan amounts;
   6. When Weber wanted the loans repaid by January 2018, he thought the refinancing that went through in December would provide sufficient funds to pay out Weber. This was not correct as he missed a deadline and had to pay another $150,000 and then a further $66,000 to remove a caveat so he could not repay Weber;
   7. He confirmed that he told Weber he had secured a loan subject to a caveat being removed and that he would be able to repay Weber from the loan money. He thought he would be able to repay within 3 months. He agreed that the loan had not been approved at the time.
6. Lorraine's evidence was that she did not know about the loans until January 2018.

1. The parties agree that Carkeek owes Weber $100,000 and "interest" on the loans being an amount to put Weber in the same position he would have been in had he not removed the loan money from his superannuation account.
2. I find that the loans were personal to Carkeek and not a loan to the partnership between Carkeek, Lorraine and Alison. I find this because
   1. Carkeek did not represent that he was seeking the loans on behalf of the partnership;
   2. Using the funds for partnership debts does not make them a loan to the partnership;
   3. Weber was not aware of the partnership until after the funds were lent to Carkeek; and
   4. Weber did not join Alison as a party to the proceedings until late July 2018 and was not aware of her involvement.
3. I accept the evidence of Weber that the loss to him based on fluctuations in unit prices by withdrawing $100,000 from his VicSuper Future Saver account as at 16 May 2018 is $23,572.42. This is calculated as $17,256.28 loss on the first withdrawal of $50,000 and $6,316.14 calculated as the loss on the further withdrawals. These figures are consistent with the figures produced by Carkeek at the hearing. Weber is not seeking interest past 16 May 2018.
4. Accordingly, on the loan agreement, I find that Carkeek is liable to Weber in the sum of $123,572.42.
5. There was no specified repayment date for any of the loans. I accept that Weber expected the loans to be paid within short periods of time.
6. Weber claims $12,960 as the loss caused by selling cattle early. He says he required funds from cattle sales because Carkeek had not repaid him the loans.
7. Assuming the loans were not paid within a reasonable period, loss will only be recoverable if it is not too remote.
8. The rule as to remoteness is set out in Hadley v Baxendale[1] which provides that a loss caused by breach of contract is not too remote if it

"...may fairly and reasonably be considered either [as] arising naturally, that is, according to the usual course of things, from such breach of contract itself, or...may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it."

1. The early sale of cattle is not a loss that is reasonably foreseeable or arising naturally from the non-repayment of loans and as such is not compensable. There is no evidence of any discussion at the time the loans were provided as to the impact the loss of funds might have on Weber in the future or generally about Weber's financial position overall. On the evidence presented, there is no reason why it was foreseeable that Weber would need to sell some cattle before they reached optimum weight. Furthermore, no evidence other than Weber's assertion was provided about the sale price of the same cattle had they reached optimum weight.
2. Weber claims $136,000 for lost opportunity by Carkeek not purchasing 17 cows with the $20,000 he gave to him on 14 May 2016. I do not accept this claim for the following reasons:
   1. Carkeek does not purchase cattle directly;
   2. Mr Campbell, the stock agent is responsible for purchasing of cattle;
   3. There is no evidence that Weber asked for his $20,000 to be returned. On the contrary, the evidence is that Weber accepted that the $20,000 was part of a loan to Carkeek;
   4. If there had been a breach of some agreement that Carkeek would purchase cattle which I do not accept, then Weber had an obligation to mitigate his loss. He could have purchased cattle directly through Mr Campbell once he knew Carkeek was not purchasing cattle for him. He did not do so. He cannot now claim to be entitled to the proceeds of sale of 17 calves a year for five years.

1. Weber's evidence in relation to the management consultancy agreement can be summarised as follows:
   1. He has a Master of Business degree, has run construction companies, and lectured at Deakin University in construction management. Carkeek gave him a copy of a business plan Carkeek had been using to seek refinancing. It lacked detail and did not support a loan. Income was derived solely from agistment arrangements;
   2. He went to dinner at Carkeek and Lorraine's house on 28 June 2017. He brought his laptop and showed them his business plan for some cattle growing enterprise for the next five years. The cash flow projection for his business was $1,518,380;
   3. He offered to help Carkeek and Lorraine on a consultancy basis. He told them his normal rate was $175 an hour and "perhaps we can work out a deal down the track".
   4. Carkeek said they needed to get refinancing or they would lose the property. He suggested Carkeek start a cattle breeding program (like he was going to do). Carkeek instructed him to include it in the business plan he was to prepare for Carkeek and Lorraine. He was engaged to provide professional consultancy services which included immediately undertaking a comprehensive business plan to aid in the obtaining of refinancing for the existing farm loan, provide advice in relation to the refinancing, provide business forecasts, cash flows and the like to create income to meet the servicing of loans and debt reduction, develop a long-term business model over five years for a beef cattle enterprise and manage that enterprise for the five-year period. Lorraine agreed that he should look after the business and Ewan look after the farm;
   5. On 29 June 2017, he sent an email to Carkeek confirming the matters discussed at the dinner including his consultancy rate of $175/hour (29/6/17 email). A hard copy of the email was in evidence, but a digital copy could not be provided as Weber said it had been deleted. In cross-examination he denied having fabricated the email;
   6. He prepared a business plan dated 21 November 2017 for Carkeek and Lorraine and assisted them to secure a loan for $3.6 million which settled on 23 December 2017. He was referred to in the plan as the Carkeek's Business Manager. As the loan did not realise spare funds, he was instructed by Carkeek to prepare a revised business plan due to the reduced cashflow. He also worked on Carkeek and Lorraine's investment scheme, sale of the long paddock, advertising, meeting with a real-estate agent and negotiating with Mr D Williams;
   7. He provided 360 hours of consultancy services to Lorraine and Carkeek as evidenced by a record of hours written on calendar entries to January 2018. He did not provide regular invoices knowing Carkeek could not pay at the time;
   8. In cross-examination he was asked about an email he sent on 22 November 2017 to Carkeek with a spreadsheet showing the loans and "all other amounts (both ways) I can think of". There was no reference to the consultancy fees in the email. He said the consultancy fees were not included because the arrangement was in its early stages;
   9. On 22 January 2018 he emailed Carkeek some spreadsheets which are described in the email as a "comprehensive document outlining the history of your borrowings from me and other promises." In the spreadsheet it states that the hourly management rate was $100 with $36,150 owing for management fees.
   10. In cross-examination, he denied that the hours he spent on the cattle investment scheme were really for his own scheme and not for Carkeek. He denied that he told Mr Cutler he would not charge Carkeek for management services;
2. Carkeek's evidence can be summarised as follows:
   1. He met with Mr Cutler and Weber in May 2017. Weber agreed he would not charge a fee to Carkeek for helping with his business arrangements;
   2. He acknowledged he confused dates and had a cloudy memory of some matters;
   3. There were many discussions at the dinner on 28 June 2017. He does not have a clear memory of them all. The main discussion was about the investment scheme to generate some income as he was in financial difficulty and thinking about selling some of the property. He would make money from the scheme by having the cattle agisted on his property and Weber would make money by charging investors fees. There was no agreement about him paying Weber $175/hour. He agreed Weber said "I don't come cheap" and "I charge $175/hour." He agreed he expected to pay him something at some stage for his management consulting. He thought Weber would help him with his business plan as part of the work for rent arrangement;
   4. In cross-examination, he said he assumed Weber was not doing his normal 20 hours a week on the farm in exchange for the management fee. He did not expect Weber to charge him $175 an hour;
   5. He agreed that Weber could assist him with negotiating with the bank and that Weber told him he needed a comprehensive business plan showing his ability to service the loan; He remembers Weber showing him a business plan at the dinner and agreeing to Weber preparing a business plan for him to take to the bank;
   6. He remembers Weber talking about an investment scheme for a lot of the night and that it was a scheme Weber was going to implement for himself;
   7. He did not receive the 29/6/17 email. He denies it was sent to him. He would have kept it had he received it. He relied upon a report dated 15 October 2018 by Jeff Quin an IT Specialist from Straight Up IT who was asked to search Carkeek's email account for the 29/6/17 email. The report states that "due to the email account being a POP account, emails are deleted from the Bigpond server 14 days after being received by the laptop, so there was minimal history available."
3. Trevor Cutler, retired advisor gave the following evidence: -
   1. He had known Carkeek for 44 years and provided financial and banking advice to him and Lorraine during that time. He met Weber in May 2017. Weber had offered to assist Carkeek source finance and he briefed Weber on Carkeek's position. At the meeting Weber produced a spreadsheet showing his cattle investment scheme;
   2. He rang Weber the same night asking for confirmation that Weber would not be charging Carkeek and Lorraine. Weber confirmed that he would not charge;
   3. He rang Carkeek after his conversation with Weber because of concerns he had about Weber's character. Carkeek was annoyed at him for ringing Weber and it was in this conversation that he was told about the loans Carkeek took from Weber and the house/agistment arrangement.
4. Lorraine's evidence can be summarised as follows:
   1. She works as a registered nurse and leaves the operation and finances of the farm to Carkeek;
   2. During the 28 June 2017 dinner there was discussion about selling part of the property. Weber discussed his investment scheme. Her preference was to sell to get out of debt. Weber explained his scheme which she did not fully understand. He spoke about helping Carkeek prepare a business plan. She thought the scheme was for Weber to get investors to invest in his cattle and she and Carkeek would benefit by receiving agistment fees. The only discussion about money was that Weber would make his money from the scheme. She spent some of the evening in the kitchen away from the conversation;
   3. The first time she heard of a consultancy fee being charged by Weber was when he sent an email to Carkeek in January 2018 which was copied to her;
   4. Weber and his partner met her at the end of January 2018. During this meeting she found out for the first time that Carkeek had borrowed $100,000 from Weber. She was "mortified" having no knowledge of the loans. She also became aware of further debts of the farm of about $420,000.

1. Based on the evidence of Carkeek and Weber, the agreement for Weber to aid with financial arrangements was with Lorraine and Carkeek.
2. The remuneration Weber was to receive for that assistance is in dispute.
3. I do not accept there was an agreement that Weber would receive $175/hour for the following reasons:
   1. On Weber's evidence, he offered to help Carkeek and Lorraine at the 28 June 2017 dinner on a consultancy basis. He told them his normal rate was $175 an hour and "perhaps we can work out a deal down the track".
   2. he did not refer to a fee of $175 an hour in his email of 22 November 2017 to Carkeek with a spreadsheet showing the loans and "all other amounts (both ways) I can think of". There was no reference to the consultancy fees in the email. I do not accept that the reason the fees were not included was, as Weber alleged, because the arrangement was in its early stages. The arrangement had run for some five months;
   3. On 22 January 2018 when the relationship had soured, Weber emailed Carkeek claiming an hourly management rate of $100 with $36,150 owing for management fees;
   4. I accept the evidence of Carkeek that he did not received Weber's email dated 29 June 2017;
   5. I reject Weber's claim that he sent Carkeek the 29 June 2017 email. Weber had not sent any emails previously documenting the agistment agreement, the house/work agreement or the loan agreements. Weber cannot produce a digital record of the email being sent. I found Carkeek truthful in his evidence about the email. In the circumstances, Weber cannot prove on the balance of probabilities that he sent the email.
   6. I must decide if Weber is entitled to any remuneration for his consultancy services. Weber's evidence of the June dinner is conflicting. He said that Carkeek agreed to pay him $175/hour but also that "perhaps we can work out a deal down the track." His emails of 22 November 2017 and 22 January 2018 do not support his claim that the agreed rate was $175/hour. Carkeek said he expected to pay something and thought Weber would help as part of the work for rent arrangement. What Carkeek expected or thought is not relevant. What is relevant is what was agreed at the time. There was no evidence that Carkeek discussed his expectations with Weber.
4. Any conversation Mr Cutler had with Weber in May 2018 is superseded by the dinner discussions on 28 June 2018.
5. I find there was no agreement reached about the remuneration Weber was to receive for his work under the consultancy agreement. In the absence of agreement Weber is entitled to recover a reasonable value for work.
6. Weber has claimed 360 hours of work. The number of hours has been challenged by Carkeek on the basis that Weber was working on Weber's personal cattle investment scheme and charging the hours to Carkeek.
7. The services Weber was to provide to Carkeek were not clearly defined. I accept that he was to provide at least two versions of a business plan. I do not accept that Carkeek was planning to set up his own investment scheme finding it more plausible that they expected to receive agistment fees for investors Weber sourced for Weber's investment scheme. I accept that Weber aided with the possible sale of part of the property.
8. Weber did not notify Carkeek of the hours he was working as Carkeek's consultant until he had worked for 360 hours. This is a significant amount of time equating to approximately 9 weeks full time work. On the evidence presented, I am not satisfied that Carkeek received the value of 360 hours of work. Weber can only be compensated a reasonable rate for a reasonable period of work or in other words for the value he conferred on Carkeek. Very little evidence was provided on this issue. I find it unreasonable for Weber to spend 361 hours on consultancy work without providing Carkeek with any update as to the hours being spent.
9. Weber assisted Carkeek with a successful refinancing arrangement and started work on a further business plan to secure more funds. He also assisted with a possible sale. Considering Weber's charge out rate of $100/hour set out in his email of 22 January 2018 and the work undertaking in relation to business plans and possible sale of part of the property, I assess on the limited evidence before me the value of Weber's consultancy work to Carkeek and Lorraine at $10,000.
10. Carkeek and Lorraine are indebted to Weber in the sum of $10,000 for his services provided under the consultancy agreement.

1. Weber's evidence in relation to the agistment agreement can be summarised as follows:
   1. During the dinner meeting on 28 June 2017, he, Lorraine and Carkeek agreed that he would agist cattle on the property as part of his cattle breeding enterprise. The agreement was for a fixed term of five years because his forecasts in his business plan which was shown to Carkeek was reliant on a five-year agistment program. Carkeek agreed to send details of the rates, look after the cattle and report on them;
   2. Carkeek emailed him on 16 July 2017 forwarding a draft agistment agreement Carkeek had with another client. The draft agreement which was for "a long term agistment agreement (12 months with option to continue)" set out the agistment rates Carkeek would charge Weber. The rates were dry cattle greater than 400 kg at $5 per week, 400 - 500 kg at $5.50 per week, 500 - 600 kg at $6 per week, cows with calves at foot at $8 per week and bulls while depastured with heifers at $10 per week;
   3. On 27 July 2017 he purchased through his Stock Agent, Mr Campbell 63 pregnant Angus cows for $97,063.88. On 1 August 2017 he purchased 64 Angus/Angus X cows and calves for $147,392.92; On 19 September 2017 he purchased two Angus bulls for $11,005.50;
   4. Under the agreement Carkeek was to:
      • provide land sufficient and suitable with feed to run his cattle for five years;
      • regularly supervise and inspect the cattle;
      • report regularly any stock losses, injured cattle and/or cattle needing husbandry attention; and
      • make his residence be available for the five-year agistment period;
   5. He inspected his cattle during July to December 2017 when he was working on the property;
   6. He met with Lorraine on 23 January 2018 and disclosed to her the extent of her and Carkeek's indebtedness. She was unaware of the level of debt. He raised concerns about the well-being of his cattle once Carkeek found out he had told Lorraine about her true financial position. She assured him the cattle would be looked after;
   7. After 22 January 2018, Carkeek's behaviour towards him became aggressive. In about mid-February 2018 Carkeek told him not to enter the property. As a result, he was prevented from inspecting his cattle and had to rely upon Carkeek to not cause harm to them. Up until that time he was satisfied with the location of his cattle and the cattle were in good condition;
   8. He confirmed in cross-examination that he checked his cattle on 12 March 2018 and 16 April 2018 and there were no issues. They were starting to get light but looked alright. He relied upon Carkeek to determine when the cattle needed to be moved;
   9. The inspection in mid April 2018 was from the road in the lower paddock. The cattle were in a reasonable condition but had remained in the same paddock since February 2018;
   10. On 11 May 2018, he received an email from Carkeek attaching an invoice dated 30 April 2018 for $76,136.50. The invoice was in relation to agistment costs, costs concerning truck parts, house rent and a charge for labour which had not been provided;
   11. The amount invoiced for agistment was wrong. It did not consider amongst other matters, that five cattle had died, and some calves taken off cows and sold;
   12. On 12 May 2018, he suspected his cattle had not been moved from the same paddocks for over three months. He inspected the cattle and on inspection found a cow died from starvation and saw the paddocks were completely denuded of reasonable fodder. One third of his cattle were emaciated, one third undernourished and the remainder in very poor condition. The cows had been deliberately starved by Carkeek and Lorraine and suffered agonising and horrendous conditions. This is an example of unconscionable conduct;
   13. On the recommendation of Mr Scott Campbell, his stock agent, he weaned 39 calves. These calves were sent to market on 16 May 2018 in a poor condition and sold for $12,377.21. Had the calves reached optimum weight he would have made a profit of $32,000. He claims this loss of profit from the respondents;
   14. On 14 May 2018, he emailed Carkeek and Lorraine advising them of the substantial breach. Two days later Carkeek moved the cattle onto improved pastures;
   15. Carkeek had not notified him of any deaths of his cattle. This is an example of unconscionable conduct;
   16. On 27 July 2018, he was threatened with being charged with trespassing for allegedly having accessed the property and using facilities without permission. This is an example of unconscionable conduct;
   17. On 23 August 2018, Carkeek deliberately left open gates on the property in paddocks where his horses were agisted and using a tractor forced the horses onto the road. This is an example of unconscionable conduct;
   18. He sold the remainder of his cattle on about 1 October 2018;
   19. Carkeek repudiated the five year agistment agreement by his conduct. Starving Weber's cattle was an act of repudiation;
   20. He denied that the cows he purchased from Cameron's Corner being a warmer climate were in worse condition than the Angus herd. Carkeek did not provide pasture suitable for his stock. The average weight of his cattle dropped 126 kg;
   21. Because he was required by a Tribunal order to vacate the house by 27 October 2018, he could not proceed with the agistment agreement. Termination of his living arrangements was constructive termination of the agistment agreement;
   22. He agrees that he owes agistment fees.
2. Weber produced a folder of photographs of the cattle taken in May 2018. In some photos the bones of the cattle were visible. Some cattle were thinner than others There was grass visible in the photos taken in the paddocks.
3. Carkeek's evidence can be summarised as follows:
   1. He did not agree to a fixed five-year agistment period. He does not agree to terms of more than 12 months. There can also be options for a further period with the ability to cancel. The terms change depending on the agreement reached;
   2. He has between 1300 and 1500 cattle on agistment belonging to 6 or 7 owners. The longest agistment period is 12 months.
   3. He accepted that the following obligations were incorporated into his agreement with Weber -
      • Providing land suitable for herd numbers and pastures to suit herd numbers;
      • Move herds between pastures to ensure sufficient pasture provided for herd type/numbers;
      • Inspect cattle regularly; and
      • Report in due course to the owner injuries or deaths or other matters concerning health of the herd.
   4. He rejected that he had an obligation to increase or maintain weight of Weber's cattle or to notify Weber in advance if pastures were not sufficient to agist cattle to allow them to be moved in a timely fashion. He says Weber was living on the property and could see for himself the condition of the pastures;
   5. The agreement with Weber was verbal. He thought Weber was putting cattle on agistment and would engage investors to take over the agistment. No term was discussed. He assumed it would be 12 months with the option to be ongoing;
   6. His role as agistee is to move cattle around to suit the pastures and this depends on the time of year and quality of grass. His role is not to wean, drench, supplementary feed and worm cattle unless specifically asked by an owner. He did not move Weber's cattle in April 2018 as he was waiting for Webber to wean the calves;
   7. His relationship with Weber had broken down by 22 January 2018 but it did not affect the agistment agreement;
   8. He denies he told Weber in February 2018 not to come onto the property saying that Weber lived on the property at the time;
   9. Weber had use of a 4-wheeler quad bike and could freely move around the property. On one occasion, after Weber had issued the claim in May 2017, he stopped Weber's access. He emailed Weber saying he could not access the property until Carkeek heard from his insurer. About four days later he returned his quad bike to Weber so that Weber could move around the farm;
   10. It is common to lose about 1 to 1½% of cattle in a normal year. In a harsh year like the 2017 year it could go up to 5%;
   11. He accepted that 7 of Weber's cows had died during the period of agistment but denied he was responsible;
   12. When he inspected Weber's cattle in May 2018 "admittedly they weren't in as good a condition as some of the others on the property. The skinnier cows had bigger calves on them";
   13. The condition of the cattle dropped off quickly between 16 April and 12 May 2018. He accepted that he did not tell Weber and thought Weber was checking his own cattle regularly. He thought Weber should have weaned the older calves in April because of the dry conditions but did not tell him to wean them. It is not his role to tell an owner when to wean calves. That is a matter for the owner to determine;
4. Scott Campbell, stock agent gave the following evidence:
   1. A stock agent provides information to clients about the markets, when to buy and sell cattle, helps mark calves and auctioneering;
   2. He met Weber through Carkeek and was engaged as his stock agent;
   3. At the time Weber bought, his cattle prices were very high. Cattle that cost $2700 a head then are now worth $1450;
   4. He advised Weber not to purchase Cameron's Corner cows. Cameron's Corner is a very dry, non-drenching area which is different to the Upper Murray which is a high rainfall area. Weber bought them anyway at a high price;
   5. He inspected Weber's cattle with him in March or April 2018. The bigger calves should have been weaned. The cows looked wormy and lousy. Some of the cows were in light condition. There was a weaner sale that week, so he and Weber planned to sell some weaners. He tried to explain to Weber that the cattle needed drenching and had not been knocked around by lack of feed as Weber thought. Some of the cows were fat;
   6. After the very cold winter and long harsh summer, the condition the cattle were in was to be expected. The Cameron's Corner cattle were not the right sort of cattle for the area. He would score the lead cows at 4-4.5 on a condition score and the bottom end around 1.5-2. No cows were starving. The Cameron's Corner cows were at the lower end of the range;
   7. Basic agistment is to provide property for an owner to run cattle. The owner is responsible in the absence of another arrangement, for the cattle;
   8. It was very hard to help Weber. He did not take advice.
5. Dr Chris Miller, veterinarian gave the following evidence:
   1. He prepared a report dated 17 May 2018 following his inspection of the cattle. In his report he stated "there were approximately 80 cows. It was estimated 35 of these cows had calves on them that range from about 2-5 months of age. There were also 45 cows that were either dry or had just had their calves taken off them. These calves were estimated to be six months or more in age. The cows in the group with calves on were in condition score (CS) 1 -3 (range is 0-5). The calves were quite rough in the coat. The cows exhibited reasonably bright demeanour. The cows moved around the yard when walked through. The other group, containing the cows which had just had their calves removed and some dry cows were in CS 1-3. There were some cows that were probably dry, that were in very good condition. The cows exhibited reasonably bright demeanour. The cows moved around the yard when walked through. The calves that had been taken off the cows were a varied lot. This indicates a variation in age of calves and ability of the dam to milk";
   2. He commonly sees cows in the condition of Weber's cows in May. Autumn/winter is a difficult time for lactating cows in the Upper Murray. Good management practice by owners dictates weaning of spring born calves when the condition of the cows falls. This is not desirable for autumn born calves (like some of Weber's calves) meaning that supplementary feeding will be required if the cow condition is falling and the calf is to stay with the cow. At the end of Autumn, the cows brighten. Weber's cows were not emaciated. A lot of owners run cattle as lean as Weber's. Most owners who calve in Autumn need to feed in the Upper Murray which is the problem with Autumn calves;
   3. It is always a concern moving cows from flat, warmer country (Cameron's Corner) to the Upper Murray. It is hard for them to acclimatise and they lose condition and do not look as well. Some of Weber's calves went beyond the two-month calving period.
   4. He has cows on agistment with Carkeek. He is a strict observer of his cattle and if he thinks his cattle need feed he will ask Carkeek to move them or give them supplementary feed;
   5. He thought the cattle should be drenched which is usual in May. He did not think Weber's cattle appeared lousy or wormy;
   6. He thought Weber's cattle condition was not surprising for the time of year, but actions needed to be taken by Weber.

1. In the absence of evidence to the contrary, I accept the evidence of Carkeek that Weber owes agistment fees to Carkeek and Lorraine for the period August 2017 to 1 October 2018 totalling $65,280.35.
2. I find that the agistment agreement was between Lorraine, Carkeek and Weber. Alison was not a party to the agreement. Alison was not an owner of the land upon which the cattle were agisted and she resigned from the partnership before the agreement commenced.
3. Weber's most significant claims relate to losses on cattle agisted on Carkeek's property.
4. It is not in dispute that Carkeek and Lorraine owed the following obligations to Weber:
   1. Providing land suitable for herd numbers and pastures to suit herd numbers;
   2. Move herds between pastures to ensure sufficient pasture provided for herd type/numbers;
   3. Inspect cattle regularly;
   4. Report in due course to the owner injuries or deaths or other matters concerning health of the herd.
5. Based on the evidence of Carkeek, Mr Crawford and Dr Miller and in the absence of a written agistment agreement, I find that Carkeek and Lorraine did not have an obligation to Weber to provide any animal husbandry to Weber's cattle. That was a matter, as stated by Mr Crawford and Dr Miller, for the owner of cattle in the absence of a specific agreement. There was no evidence that Weber instructed Carkeek to provide husbandry services or maintain or increase the weight of Weber's cattle.
6. The issue is whether Carkeek (and Lorraine) breached the agistment agreement in May 2018 by not providing sufficient pasture.
7. Weber says that in mid-April his cattle were in an acceptable condition, but they had been in the same paddock since February 2018. He inspected on 12 May and saw that the paddocks were completely denuded of reasonable fodder. One third of his cattle were emaciated, one third undernourished and the remainder in very poor condition. He claims the loss in value of the cattle (which he sold) and loss of future earnings for five years because of selling the cattle.
8. Dr Miller's report and evidence about his inspection of the cattle does not support Weber's case. Dr Miller did not find any of the cattle to be starving. The cattle were lean but that was consistent with the time of year.
9. Carkeek acknowledged that "admittedly they weren't in as good a condition as some of the others on the property. The skinnier cows had bigger calves on them". This does not mean that the cattle were starving. Under the agistment agreement Carkeek is not obliged to tell Weber when to wean his calves. This is a husbandry matter for which Weber is responsible.
10. I accept the evidence of Dr Miller and Mr Campbell that the cattle from Cameron's Corner were not suited to the area and had less condition than other cattle.
11. I accept the evidence of Carkeek, Dr Miller and Mr Cameron that Weber's cattle were not starving.
12. I accept the evidence of Carkeek, Dr Miller and Mr Campbell that owners have obligations in the absence of any express agreement to the contrary to inspect their cattle and determine when to wean;
13. Weber claims that he was prevented by Carkeek from accessing the property to check on his cows. Carkeek says he only prevented access to Weber for 4 days in May. I prefer the evidence of Carkeek to Weber. Weber lived on the property and had been given access for all but 4 days and had the use of a quad bike to move around the property. The Tribunal book contains many emails from Weber to Carkeek about matters concerning their respective arrangements. I was not taken to any emails from Weber to Carkeek complaining about being denied access to the property. I do not accept that Weber could not have inspected his cattle.
14. On the evidence presented Weber has failed to satisfy me that his cattle were starving and that Carkeek and Lorraine were in breach of the agistment agreement.
15. Weber states that he weaned 39 calves and sold them on 16 May 2018 in poor condition. He claims $32,000 loss of profit. There is no reason why the calves could not have remained on the property, moved with the other cattle to a new pasture and fattened before sale. I am not satisfied given the time of year and the agistment arrangement that there is any evidence that Carkeek and Lorraine caused this loss to Weber.
16. Weber claims $90,000 damages for nine cattle dying which includes a loss of profit claim on them breeding for five years. The evidence from Dr Miller, Carkeek and Mr Campbell is that cattle die when on agistment for many reasons. Other than Weber's assertions, there is no evidence that any cattle died by reason of something Carkeek and Lorraine did or did not do. I accept that Carkeek did not notify Weber in a timely manner of any deaths. That does not however entitle Weber to compensation. Accordingly, this claim fails.
17. I do not accept Weber's position that the agistment agreement was for a fixed term of five years for the following reasons:
    1. Carkeek denies the agreement was for five years;
    2. Carkeek had never given a fixed five-year agistment term;
    3. Carkeek's longest term for agistment had been twelve months with further options;
    4. It is not enough to say that because Weber's forecasts in his business plan which was shown to Carkeek was reliant on a five-year agistment program, the term was fixed for five years; and
    5. Carkeek denies that he terminated the agistment arrangement and says that Weber could have kept his cattle on agistment had he chosen to do so.
18. I do not accept Weber's submission that Carkeek terminated or repudiated the agistment agreement by his conduct or by evicting Weber from the house. There is no evidence that the agistment agreement was dependent upon the house arrangement continuing.
19. The law relating to repudiation of contract has been addressed in the decision of the High Court of Australia in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited.[2]
20. The majority (comprising Gleeson CJ, Gummow, Hayden and Crennan JJ), at [44] said:

The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. ... Secondly, it may refer to any breach of contract which justifies termination by the other party.

1. Weber asserts repudiation of the agreement by Carkeek. I do not accept the assertion. Carkeek did not resile from his obligations under the agreement. He attempted to fulfil them. Whether he has performed his obligations sufficiently close to the letter of the agreement is a different matter. This brings us to the second basis of alleged repudiation, which is whether Carkeek has breached the agreement in such a manner as to justify termination.
2. The majority in Koompahtoo addressed the second basis of repudiation of contract as follows, at [47]:

For present purposes, there are two relevant circumstances in which a breach of contract by one party may entitle the other to terminate. The first is where the obligation with which there has been failure to comply has been agreed by the contracting parties to be essential. Such an obligation is sometimes described as a condition. In Australian law, a well-known exposition was that of Jordan CJ in Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd who, in comparing conditions and warranties, employed language reflected in many statutory provisions.

1. I have found that Carkeek failed to report deaths of cattle in a timely manner to Weber. While this failure is a breach of the agistment agreement, it is not a breach of an essential term or condition. No evidence was given as to the effect of the breach. The breach is not significant and certainly does not suggest a repudiation of the agreement by Carkeek.
2. I have not found any other breach of the agistment agreement by Carkeek. By mid-May the cattle were in a condition where they needed to be moved into other paddocks. Carkeek says they could not be moved until calves were weaned. Weaning was a matter for Weber and not Carkeek. Had the relationship between the two men not broken down it is likely Carkeek would have told Weber to wean earlier than he did. The worst case scenario is that the cattle were left for 3 or 4 weeks longer in a paddock than desirable. Weber's evidence is that the cattle were in reasonable condition on 11 April 2018. I am not satisfied that failure to move the cattle between 11 April and mid-May 2018 is a breach of the agistment agreement amounting to a repudiation.
3. Weber's claim for $1,518,380 for lost opportunity because of the termination of the agistment agreement must fail. I do not accept that the agreement was a fixed term of five years. Even if there had been a fixed term, I do not accept that Carkeek repudiated the agreement. Even if I had made this finding, there is no evidence that Weber did anything to mitigate his loss other than to sell his cattle.
4. If the agreement had been terminated, Weber could have agisted his cattle on another property. He said it was difficult to locate another agistment property and he had financial constraints. No further evidence at all was given on this matter. I do not accept that alternative agistment somewhere in Victoria could not have been found.
5. Weber said he had financial restraints which were caused by Carkeek not repaying the loans within a short period of time. I do not accept that a $1,518,380 loss of opportunity claim is a reasonably foreseeable loss arising from non-repayment of loans in circumstances where there was no evidence that Weber's cattle plans were discussed prior to the loans being provided.

1. Weber claims the following expenses from Carkeek, Lorraine and Alison: -

1. For the reasons given previously, I find Alison not liable for the expenses.
2. No evidence was provided as to why Lorraine was liable for the expenses. The arrangements according to both Weber and Carkeek were made directly between them. On that basis and in the absence of further evidence, I find Lorraine is not liable for any of the expenses claims.
3. Carkeek accepts that he owes Weber $990 for the valuation fee.
4. In relation to the truck parts, Weber's evidence was:
   1. He bought the truck parts to put the truck into a roadworthy condition. He was buying from Carkeek for $10,000. The parts were required when he bought it, to meet the roadworthy requirements. As the vehicle was registered he expected it to be roadworthy;
   2. Carkeek was with him when he paid for the roadworthy certificate (RWC). He paid it because Carkeek had no money with him. He also paid for the RWC on Carkeek's trailer.
5. In relation to the truck parts, Carkeek's evidence was that he sold the truck "as is" for $10,000.
6. The sale agreement was verbal. Weber said he had an expectation that the truck would be roadworthy because it was registered. There was no evidence that the roadworthy condition was discussed. It is not uncommon for registered vehicles to be unroadworthy. They may be roadworthy at one time, but they can become unroadworthy over time.
7. I am not satisfied that Carkeek agreed to sell a roadworthy truck to Weber. There is no evidence that a RWC was discussed at the time of sale. Accordingly, the claim for the truck parts fails.
8. In the absence of any evidence to the contrary, I accept that Weber is entitled to be reimbursed $250 for the cost of paying for Carkeek's RWC and $330 for payment made to the truck driver.
9. In summary, Carkeek owes $1,570 to Weber for reimbursement of expenses.

1. Weber claims that the respondents engaged in unconscionable conduct in breach of section 21 of the Australian Consumer Law (ACL). He relies on the following conduct of Carkeek as examples of unconscionable conduct: -
   1. Breaching the agistment agreement and deliberately starving his cattle;
   2. Denying him access to the property and saying he was going to be charged with trespass;
   3. Blackmailing him by saying he could not move his cattle until he paid outstanding agistment fees;
   4. Failing to tell him that the first loan would not be paid back in two months and that Carkeek was heavily in debt and could not pay back the loans;
   5. Evicting him from the house;
   6. Failing to tell him Carkeek would not pay him for management services but would receive the benefit of the services;
   7. Telling him in June 2016, that Carkeek had approvals for refinancing and would be able to pay back the loans together with interest when he did not;
   8. Promising him on or about 18 July 2017, when Carkeek asked him for a further $5000, to pay it 'next week" and then not pay it;
   9. Promising him on 9 January 2018, that Carkeek would be transferring $10,000 to him the next day and not transferring the money.
2. Weber claims that because of the unconscionable conduct he is entitled to general damages and exemplary or punitive damages.
3. Section 21 of the ACL provides

(1) A person must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a person; or

(b) the acquisition or possible acquisition of goods or services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

1. Section 22 of the ACL sets out a range on indicia that the Tribunal may have regard to in evaluating whether conduct is unconscionable.
2. There is no suggestion in this case that Weber was at a special disadvantage in dealing with Carkeek because of illness, ignorance, inexperience, impaired faculties or other circumstances affecting his ability to conserve his own interests and that Carkeek unconsciously took advantage of the opportunity.
3. I find that Weber was aware of Carkeek's general level of indebtedness. Weber knew that Carkeek had significant debt on the property and had to refinance in the order of $3.6 million. Even if Weber was not aware, there was no evidence presented that Weber would have done anything differently. The alleged nondisclosure by Carkeek of his level of indebtedness does not amount to unconscionable conduct.
4. Weber submitted that Carkeek's conduct fell within s22(2)(i)(i) of the ACL which provides: -

(2) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the acquirer) has contravened section 21 in connection with the acquisition or possible acquisition of goods or services from a person (the supplier), the court may have regard to:

(i) the extent to which the acquirer unreasonably failed to disclose to the supplier:

(ii) any intended conduct of the acquirer that might affect the interests of the supplier; and

(iii) any risks to the supplier arising from the acquirer's intended conduct (being risks that the acquirer should have foreseen would not be apparent to the supplier).

1. Weber relied upon the Tribunal decision of Sharp v Corporate Office Supplies Pty Ltd[3] without taking the Tribunal to any particular part of the reasons. That case dealt with an unsolicited consumer agreement made by telephone. It provides a general summary of the law of unconscionability. The case does not deal with s22(2)(i)(i) of the ACL and involves conduct different to the present case.
2. I do not accept that unkept promises to repay money as set out in paragraph 98 amount to unconscionable conduct. They were simply promises that were not kept and at best are a breach of the various loan agreements.
3. I have determined earlier in these reasons that the conduct complained of in paragraph 98(i) and (ii) did not occur.
4. There was no evidence of blackmail and accordingly I find that the conduct referred to in paragraph 98(iii) above did not occur.
5. Having found that there was no five-year agreement for Weber to occupy the house, evicting him (the conduct complained of in paragraph 98(v) above) is not unconscionable conduct.
6. There is no evidence that Carkeek said he would not pay for management services (the conduct complained of in paragraph 98(vi) above and as such there can be no unconscionable conduct in this regard.

1. Weber claims damages "in negligence against the respondents for the harm brought upon the applicant's cattle, notwithstanding the psychological harm brought upon the applicant including but not limited to damages in negligence for conduct deliberately, knowingly and calculated by the respondents and the respondent's agents to cause unreasonable risk of harm to the applicant."
2. To succeed in a claim of negligence, Weber must establish that Carkeek, Lorraine and Alison owe him a duty of care. No details were provided in the points of claim in relation to a duty of care. In closing submissions Weber referred to negligence claims but did not provide details of those claims other than to rely on the unconscionable conduct as being the acts of negligence.
3. It is not clear whether Weber's claim includes a claim for damages for personal injury. No medical or other evidence was led to support such a claim.
4. In the circumstances, given my finding that there was no unconscionable conduct and given the lack of particulars in relation to the claim for negligence, the claim fails. The arrangement between the parties that might give rise to a duty of care on the facts of this case is the agistment arrangement. Alison was not a party to that arrangement. I have found for the reasons stated above, that there was no breach of the agistment agreement. I also found that there was no breach of the house/work agreement. Accordingly, Weber has not satisfied me that he is entitled to any damages for negligence by any respondent.

1. Weber owes Carkeek and Lorraine $84,014.35 being
   1. $18,734 under the house/work agreement; and
   2. $65,280.35 under the agistment agreement.
2. Carkeek and Lorraine owe Weber $10,000 under the consultancy agreement.
3. Carkeek owes Weber $125,142.42 being
   1. $123,572.42 under the loan agreement; and
   2. $1,570 for reimbursement of expenses.

[2] [2007] HCA 61

[3] [2017] VCAT 3