- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Application No 44 of 2002
SHARYN LOUISE CICOLINI
HIS HONOUR: By this application the applicant seeks orders that the defendant deliver possession to him of certain specified livestock being 66 head of cattle and 14 horses which he claims as his property. The defendant opposes the making of this order because she is not satisfied that the applicant is the owner.
If this be the case, she claims that these cattle form part of the herd which she purchased with the grazing property known as King Junction Ranch from King Junction Pty Ltd. Other proceedings have been commenced between the respondent and the vendor in respect of that transaction and the method of its completion.
The applicant founds his claim to ownership of the livestock on the undisputed fact that the mature cattle are marked with his registered brand and upon evidence in his affidavit as to how he acquired the livestock and the reason why they were left on the property when the sale was due for completion.
His affidavit refers to his receiving cattle from his father Russell John Walmsley who is the director of King Junction Pty Ltd in lieu of wages for work which he has had performed on behalf of the vendor company. There is no contest, and probably could be no contest from the respondent that this was so. Mr Frendon is supported in this claim by affidavits from his father and from his brother, Russell Itelo Walmsley.
Of more significance is the evidence that on two occasions, between the making of the contract and its due date for completion, Mr Cicolini, presumably acting on behalf of the respondent, visited the property. On at least one of those occasions cattle were mustered and in that muster were identified as cattle belonging to the applicant. The cattle were purposely placed in a holding paddock - which, in the material, is described as the lagoon paddock - for their easy collection.
It is alleged on behalf of the applicant that, on other occasions during the inspection of the property, specific statements were made stating that there were certain cattle on the property which belonged to the applicant.
In his evidence before me today, Mr Cicolini disputes that and claims, at the occasion of his first inspection, he was told by Mr Walmsley, the father of the applicant, that all cattle on the property were part of the herd. At the time such a statement was made, Mr Cicolini agreed that the applicant was not present. At the initial inspection, Mr Cicolini says he was not made aware of any other person's cattle on the property. It is probably not necessary to resolve that dispute over recollection as to what was said, because there is no doubt that, prior to completion, the respondent was well aware that there were cattle bearing the brand of the applicant and well aware, as he concedes, that those cattle were being mustered and placed in a holding paddock.
There are other cattle of the applicant running with the main herd, but these have not been particularly identified and are probably not recoverable until a full muster of the whole property has been undertaken. The application is concerned with those identified cattle who, as I have said, were purposely mustered prior to the date for completion.
Further to that, when the appearances were made before me in respect of the other action, reference was made to the cattle which are the subject of this application. Mr Morzone of counsel, on two occasions, made reference to those cattle. The first reference appears at page 5 of the transcript of those proceedings which were hold on the 18th of March 2002. In it, Mr Morzone said:
“My learned friend no doubt is aware that Mr Frendon (the applicant) was invited to show ownership of the brand which appeared on the cattle, or some other transfer of their ownership to him … Once they were identified they will be released.”
Again, at page 8 of the transcript, the following comment appears. Mr Morzone:
“Mr Frendon's cattle are almost in an area of non-dispute.”
Soon after that appearance in Court - in fact it appears it was the next day, the 19th of March 2002 - the applicant produced a certificate of his registered brand which coincided with the brand on the cattle. When no response was made to that act, the applicant's solicitors wrote on the 18th of April, a letter seeking acknowledgment of the applicant's ownership of the cattle.
The response was a letter from the respondent's then solicitor saying they sought an affidavit as to the ownership.
The respondent appearing before me maintains the stance that she is not satisfied of the applicant's ownership of the cattle. The basis on which that was put was that the cattle were cross-branded with the brand of the herd of King Junction Station which were part of the sale. However, it emerged in cross-examination that only eight of the cattle bore that brand. The others appeared to have simply the registered brand of the applicant.
Given all the circumstances and the lack of any other challenge to the applicant's claim of ownership, I am satisfied that the applicant has proven his ownership of the cattle which are the subject of this application and I propose to order that those cattle be delivered up at a time, date and location which best meets the convenience of the parties.
The applicant has also sought, by way of a mandatory injunction, that the respondent permit the mustering and removal of the cattle from King Junction Station.
It seems to me in the circumstances, that it is not necessary to consider the making of a mandatory injunction, although had it been necessary, and notwithstanding the significant reluctance on the part of Courts usually to make interlocutory mandatory injunctions, I would have so ordered. But the circumstances appear now to be that the respondent is prepared to muster the cattle from where they are now located and to deliver them into the applicant's possession at the holding yards at King Junction Station. That, I believe, is a sufficient order to dispose of this particular case. But I mention if that is not attended to in a timely way, I will have no hesitation in ordering the injunction, to allow the applicant to make its own arrangements for removal.
I do that, because I accept the evidence of the applicant that these cattle were mustered into the lagoon paddock for the express purpose of, firstly, being available to assist in the muster of the property and, secondly, to be available for delivery. On the evidence, it now appears that the respondent has released the cattle from the lagoon paddock into a much larger paddock called the bottom river paddock, because those cattle had run out of feed. That seems to be a matter of common ground since the concern about the cattle having feed was an aspect justifying the mandatory injunction.
What is unfortunate is that the cattle were removed without notice to the applicant, at a time when it was known that the applicant made serious claims to the cattle and was looking for the opportunity to remove them. A simpler course would have simply been to advise the applicant that he could come and take the cattle which had already been mustered for that purpose.
I propose, therefore, to order that the defendant, within 14 days of this order, deliver possession to the plaintiff 66 head of cattle branded C (spur symbol) Z and their calves at foot, and 14 horses which, as at the 14th of January 2002, were respectively located in the lagoon holding paddock and the horse paddock at King Junction Station.
I direct that delivery of the cattle be made to the applicant or his duly authorised representatives at the holding yards at King Junction Station by 10 a.m. on the 21st of May 2002.
I order that the defendant pay the applicant's costs of and incidental to this application to be assessed on the standard basis.
HIS HONOUR: Now, I would anticipate, ladies and gentlemen, so that there is no further need for recourse to Court, that there will be some cooperation about the delivery of these cattle.
HIS HONOUR: I will let you each discuss the proposals and I will give liberty to apply, in case I have to resolve the question.
HIS HONOUR: So, if they are capable of being removed by truck, that will be your proposal?
MR HENRY: First preference, yes.
HIS HONOUR: And if not able to be removed by truck, then they will be walked off?
MR HENRY: Yes.
HIS HONOUR: And you will make that proposal in writing?
MR HENRY: Certainly.
HIS HONOUR: And if there is to be any variation in time or date, I ask that you give timely notice to the respondent.
Mrs Cicolini, what I propose doing is giving you liberty to apply. That means that if there is some reason why the proposal cannot be met, then you must come back to Court, but there is no need to file any documents. You simply contact the Registrar of the Court who will fix a date for the matter to come back on before me.
RESPONDENT: Yes, your Honour.
HIS HONOUR: Thank you.
MR HENRY: I might just foreshadow simply to cover ourselves for the future that it's likely there will be some contact with the neighbours with a view to having them inquire at the relevant time to double check with the defendant whether or not, at that given time, there remains any problem with trucks getting on in respect of crossings.
HIS HONOUR: Yes. Thank you. That is why I mentioned there is an opportunity here for the parties to show they have some capacity to cooperate. If not, I give the parties liberty to apply on giving to the other parties two days' notice.
- Published Case Name:
Cheyne Frendon v Sharyn Louise Cicolini
- Shortened Case Name:
Frendon v Cicolini
 QSC 161
07 May 2002
No Litigation History