Zinace Pty. Ltd. v Tomlin[2002] QDC 363

DISTRICT COURT[2002] QDC 363

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 4343 of 2002

ZINACE PTY LTDAppellant

and

DENNIS TOMLINFirst Respondent

and

ADAM NOEL FREEMANSecond Respondent

and

KRISTEN LYNNE FREEMANThird Respondent

and

JEFFREY EARL GRAY AND

PHILLIP ARTHUR HENNESSY Fourth Respondent

and

NORMA PURSERFifth Respondent

BRISBANE

DATE 12/12/2002

JUDGMENT

HIS HONOUR: This is an appeal by Zinace Pty Ltd against the determination by a Magistrate of Senior Constable Tomlin' sapplication under section 425 of the Police Powers and Responsibilities Act 2000 for a determination as to whatought to be done with 101 cattle and three horses which thepolice had in their possession. That had come about becauseMr Lynton Freeman was the subject of a complaint by theNational Australia Bank that the cattle belonged to it undera stock mortgage and had been stolen by Mr Freeman who wasthe grantor under the stock mortgage. The matter got as faras a jury trial and a successful outcome from Mr Freeman' spoint of view.

He is presently the subject of a sequestration order which has been stayed pending the outcome of an appeal to the FullCourt of the Federal Court of Australia. The bankruptcy proceedings I would infer without having been exposed to the detail of them are but a recent stage in a long-running dispute between Mr Freeman, who was a grazier, and the bank. It was a substantial lender to him and had security over his cattle property Glassford Vale.

Difficulties were encountered by Mr Freeman in satisfying the bank's financial demands. There have been multiple Supreme Court proceedings which were preceded by a mediation conducted by the late Mr Justice Douglas while he was still at the Bar.

A collateral security taken by the bank when the principal mortgage over Glassford Vale was given was the first stock mortgage dated the 29th of May 1992. It related to some1,180 cattle in six categories all said to be branded 0 LQ. It was an old system mortgage under which the bank becamethe owner of the cattle under the provision whereby:

"The mortgagor hereby signs and transfers to the bank all and singular the sheep, the cattle, horses and livestock described in the schedule here to (here in after called the 'livestock') now being on the lands and premises of the mortgagor described in said schedule and all other livestock of the mortgagor which may be owned or purchased and all future increase and progeny of all of the livestock".

A second stock mortgage to similar effect, but displaying amore user friendly setting out was signed on 16th September 1996. The schedule this time in six categories appears to refer to 1,580 cattle branded 0 LQ. There is a third stock mortgage dated the 19th of December 1997, whose form reflects that of the second rather than that of the first, inwhich the number of "mortgaged sheep, cattle, horses and livestock" is shown as "1,200 cattle being 500 breeders plus 700 mixed head". The brand appears as 0 LQ.

One reason for the reduction in numbers is that sales occurred in the interim. I have been told there were 134 animals sold between 20 August 1997 and 19 December 1997. Mr Freeman had an ability to sell animals, strictly with thebank's written consent, on the basis of accounting to thebank for the proceeds. It is likely that the formality of a written consent would not be insisted upon. I am satisfied that the bank would not lose any of its entitlements by having acquiesced in informality of that kind.

The bank appointed receivers around the 12th of October 2000. Sales of cattle in numbers somewhere between 400 and 500 had been conducted by the receivers. It's clear that a large number have gone missing in some way, given that only 101 remain. Those were located by the police on the property of a Mrs Williams at Skeleton Creek. The Stock Squad caused an experienced valuer to catalogue, describe and value those 101 animals. The document produced became Exhibit 26 before the Magistrate in Constable Tomlin's application and was the basis of the Magistrate's allocation of animals in his final determination, in accordance with which Zinace Pty Ltd was awarded 11 animals, being those "branded on the offside andnear side with VPB or on the off side only with a VPB".

The remaining cattle were determined to belong to the bankand likewise, three horses. I think it may be necessary, when I have finished delivering these reasons, to invite the parties, if they wish to, to make supplementary submissions about the horses which technically come within the stock mortgages where horses are described. I think I am right insaying that in the three schedules that have been produced there has never been a reference to anything other than cattle - giving rise to a question as to whether,not with standing the language of the standard formal documents, there ever was an intention to include horses inthe stock mortgage. There may be other documents in the substantial quantity of exhibits the Magistrate had before him which shed light on that possibly interesting question.

Zinace Pty Ltd, the appellant, came into the picture at atime when Mr Freeman clearly was in a difficult, if not diabolical, financial situation, particularly as against the bank. It seems it may have been some joint venture vehicle for an enterprise involving Mr Free man and a geologist,Mr Puce, focusing on minerals. More recently, I think it' sin controvertible that the company has become involved inpurchasing, holding and perhaps selling cattle, I would infer as a means identified by Mr Free man by which he might engage in his accustomed activities and support him self and/or his family without needing to be concerned about claims by the bank. Mr Free man certainly would not be the only person striking financial trouble who approached things in that way. As I understand the law, he was entitled to do that.

What concerned the Magistrate and what concerns this Courton appeal is whether he has done it in a way which involves depriving the bank of its cattle. The Magistrate was very critical of Mr Free man, noting in his careful reasons for judgment, of 28th of October 2002, that he had "created aconfusing smoke screen of evidence to gain the benefit to his advantage (regarding) ownership of the majority of the cattle (which) in fact belonged to the bank under the stock mortgage."

In the proceeding before the Magistrate, the only claimants to cattle were Zinace Pty Ltd and the bank. Each party seems to have been given unfettered opportunity by the Magistrate to present evidence through witnesses and as documentary exhibits. The hearing lasted days and the Magistrate's reasons suggest he gave careful considerationto the evidence before him. I have striven to be careful inthis appeal to avoid generalisations which might be taken asindicating what ought to happen in section 425 applications and in appeals from the determinations that magistrates make. It is a new area of jurisprudence, replacing the old regime under section 39 of the Justices Act 1886 which no longer applies to police officers.

I have been among those who doubted whether there was a right of appeal under section 45 of the Magistrates CourtAct or section 222 of the Justices Act against a Magistrate' s determination. The Court of Appeal decision in Ketchell v. Wynch, Appeal No 5994 of 2001, makes it clear,through the expansive interpretation placed upon "action" insection 45, that there is such an appeal as of right. It also appears to follow from that Court of Appeal decision that the UCPR provisions and rules 782 and following apply in the appeal which, accordingly, is one by way of rehearing. See rule 785(1) and rule 765. The Court tries the matter again on the evidence below. The appeal by wayof rehearing is not a hearing de novo. I took the partiesto have agreed in that approach, so there is nothing for meto decide.

Mr Gorman, appearing for the appellant, sought to adduce further evidence in the form of multiple affidavits by Mr Freeman. In the end, I have not had to have regard tothat material. I am doubtful that it would have been appropriate to, in any event, since the fairly rigorous tests for introduction of further evidence on appeal would have to be satisfied. In my opinion, they were not. My understanding of the "new" evidence is that, in large, it issimply a restatement of assertions Mr Free man has made before, many of which have been rejected by the Magistrate. On ordinary principles, it would not be open to the appellant to revisit those matters.

I do not wish to be taken as suggesting is that, in appeals such as the present, the Court ought necessarily to be opposed to reception of new evidence. Section 425 situations will be many and various. I would expect there will be some in which perhaps because goods are perishable orfor other reasons, applications have to be dealt with extremely urgently and in a relatively informal way. It may be that an appeal offers not only the luxury of a more leisurely hearing but also a proper occasion for the examination of fuller evidence which may be more revelatory of the truth of matters.

Before the Magistrate a transcript of parts, at least, ofthe evidence given in the criminal trial became Exhibit 32. Two different uses were sought to be made of that material. The first was to discredit the evidence of Miss Green whowas called by the bank. The second was to expand on the evidence of Mr Free man by getting before the Magistrate additional details which Mr Freeman, who gave evidence before the Magistrate at considerable length, had previously given before the jury. The Magistrate was invited to makesuch use of Exhibit 32 in the closing address of Zinace'scounsel. I think it would have been open to he Magistrate to use such material and I would not wish to say anything against a course of avoiding the repetition of evidence byuse of transcripts of evidence that witnesses had given onother occasions. That might often be productive of economy. I am not sure that anything in this appeal particularly turns on it, but it seems to me this was not acase where the Magistrate was required to proceed in that way.

As far as Miss Green particularly is concerned, there are elements of unfairness in her not having been invited, whenshe was cross-examined by Mr Wilson, to comment on what seems to be the fact that she gave much more confused and conflicting evidence before the jury. There is no way of knowing whether the Magistrate took Exhibit 32 into accountin accepting, as he did, Miss Green's evidence. In this appeal, I think the Court should proceed on the basis thatthe evidence before him from Miss Green was acceptable and accepted. I certainly do not think it is possible for thisCourt, which has not observed the lady give evidence on any occasion, to reject a favourable assessment of credibility by the Magistrate, given the advantage he had in the way the matter unfolded.

I am not sure that Mr Perkins, who represented the bankbefore the Magistrate and at the appeal, had fair notice that Zinace was relying on Mr Freeman's evidence before thejury as positive evidence in relation to the circumstances of the particular cattle. I do not think my un willingnessto place reliance on it in the appeal is going to disadvantage Zinace Pty Ltd in any event.

The first position of the appellant is that none of the cattle belonged to the bank because the stock mortgages were all invalid. The proposition in relation to the last stock mortgage, which I think was advanced before the Magistrate unsuccessfully, was that Mr Freeman was in such a state of mind-----

MR PERKINS: Your Honour, might I interrupt. I have - I did see in the transcript that Mr Wilson expressly didn't put that.

HIS HONOUR: Sorry, thank you.

MR PERKINS: And I think I said he had, but I saw in the transcript - I said to my friend at lunchtime that he hadn't. He expressly said he wasn't relying on that.

HIS HONOUR: I will leave this exchange in the reasons. It is a simple way to get things clear. Thank you. Although there may have been no challenge before the Magistrate on that basis, there has been a challenge to associated to documentation by Mr Freeman in Supreme Court proceedings. Those reached in the Court of Appeal in National Australia Bank Limited v. Freeman 2001, QCA 473. Iam told there is an application for leave to appeal to the High Court on Mr Freeman's part, also that the application does not at present specifically relate to the third stock mortgage. It has not been suggested that there is any reason for this Court to delay a decision in the appeal until it is known whether the High Court will entertain Mr Freeman's appeal to it.

A challenge which has been made to the third stock mortgageis that there is no consideration for it. Mr Gorman has relied on some decisions of the Supreme Court of Victoria. I will not delay now, but will in due course add references tothem. They are Elder, Smith and Company Limited v McKellar (1895) 21 VLR 664 and Geddes v Mc Donnell (1896) 22 VLR 330. While those decisions support Zinace's contention,they are of no help, in my view, because Mr Perkins has been able to point to evidence which clearly shows there was consideration.

I refer to what has been called the "mediation deed" of the4th day of December 1997, Exhibit 19 before the Magistrate,which records the agreement the parties reached through the auspices of Mr Douglas. Although it did not specifically contemplate the stock mortgage, that instrument (which, likethe others, is in a form of a deed with the usual consequences as to requirement of consideration) is one the parties executed at the same time, significantly, as acapitals bill facility also dated the 19th December 1999.This was Exhibit 22 before the Magistrate, which incorporates a new lending arrangement and seems to me to face no consideration problems whats oever. As I understand Mr Gorman's argument, related to the consideration point were arguments under the Bills of Sale Act 1955 as amended. Section 7B had a place in the legislation between 1992 and 1999, but it is no longer there. I am unable to understand any basis on which itcould be irrelevant.

Reference is also made to section 12 under which aregistration under the Act expires after five years. As Iunderstand it, under the general principles that apply to the Bills of Sale and Other Instruments Act 1955, arrangements between parties have effect according to their terms. The purpose of the Act is to regulate the situations of third parties which I do not think there are present here in any relevant way. The five-year period, in any event, would not have lapsed in respect of the second stock mortgage. In relation to it, as I understand it, the unsuccessful consideration argument was also raised.

I have been unable to identify any basis on which the bankis not entitled to its full rights as set out in the stock mortgages and particularly the last. I have been referred by Mr Perkins to a decision in an analogous context - of guarantees which, if applicable, would protect the bankagainst any claim that by taking a later "security" it lostits ability to rely on an earlier one. This is Australia and New Zealand Banking Group Limited v. Steffen, Plaint 511 of 1993, judgment delivered upon a presently uncertain datein 1995.

Mr Gorman made submissions (that would apply from the stagenow reached) that it is not sufficient for the bank to prove that particular cattle are branded 0 LQ for them to comeunder the "bill of sale", or stock mortgage. The bank must also prove those cattle belong to Mr Freeman, he submitted. There was evidence before the Magistrate that within the Freeman family, the brand was used to indicate which family member was the owner of a particular animal by an appropriate placement of the brand.

The Magistrate summarised Mr Freeman's evidence before him as follows:

"I will endeavour to explain how the brand was used to determine ownership of cattle on Glass ford vale according to Mr. Freeman -

1. Lynton FreemanOLQ on the off side ribs.

2. Adam Freeman OLQ on the off side on the rump.

3. Kirsten Freeman OLQ on the near side on the rump.

4. Norma PurserOLQ on the neck or on the top of the shoulder."

Conflicting evidence was given before the Magistrate as to whether the bank had been told of these arrangements. The bank witnesses denying it, also denying there was any note any where in the bank's records alluding to it. The point of Mr Freeman's claim, of course, was that, while the bank might be entitled to animals branded 0LQ on the offside ribs, itwas not entitled to animals branded 0LQ in other places. The Magistrate was satisfied that the bank was never told about this peculiarity connected with location of the brandand I cannot interfere with that finding.

He also expressed a view that Mr Freeman was "the actual controlling person and/or agent and in real terms the owner of all cattle under the brand of OLQ and he, in fact, signed the stock mortgage as owner of all cattle under that brand". The Magistrate went on to reject any claim of ownership other than that of the bank to any cattle with the brand OLQ. The OLQ brand was registered to Mr Freeman. Also, it was assigned to the bank under the stock mortgages. It is difficult to see what entitlement Mr Freeman could have had to brand cattle other than his and/or the bank's. I am not attracted by the appellant's argument that to been titled to an animal, the bank must prove both the occurrence of the brand on the animal and that it was owned by Mr Freeman. Except in a situation, not this one, where the bank understands that the appearance of the brand on an animal does not necessarily mean what it appears to, I think the Magistrate was right in his conclusion that the branding of the animal OLQ on the balance of probabilities indicates that the bank has title.

Mr Gorman's argument in reference to Exhibit 26 items 39,44, 45, 89 and 91 was that various special features of those animals indicated they belonged to Zinace Pty Ltd. In the first four instances, that had to do with ear tagging of the animals - and at least in respect of 44 an additional brand which appears to be TT 7/8. Both 39 and 89 also had the brand VPB which belongs to Zinace Pty Ltd having been acquired from Mr Bjorklund. I agree with the Magistrate regarding the OLQ brand as the appropriate discrimen. It is not useful to inquire into the significance of ear tags or other indicia of the history of those animals.

The Magistrate's main reason for his conclusion in favour ofthe bank focused on Miss Green's evidence, she being, as wecall conceded, the only independent witness before the Magistrate. She worked on the property from May to October 2000 through the week. So she was not there all the time.She described to the Magistrate exercises in which cows with calves were separated from their calves and the calves were branded indiscriminately, or perhaps (to put it more correctly), predominantly, if not totally, VPB, whether their mothers were branded VPB, OLQ or anything else.

It was Mr Freeman's obligation under his stock mortgage toensure that progeny of OLQ cows were not dealt with in away which would deprive the bank of its title to them. I think the Magistrate rather took the approach that, if Mr Freeman was desirous of getting animals beyond the graspof the bank, he had to be punctilious about it and if he is going to do that by use of brands, or moving cattle toMrs Williams's place or else where, he must not trespass onthe bank's rights.

If Miss Green's evidence is accepted, it seems he did so.The 101 cattle went off to Mrs Williams's place, more orless on the eve of the appointment of receivers, the last onthe 1st of October 2000. I understand that there had been deliveries in each of the three months before. A branding exercise was described by Miss Green that she and, indeed, Mr Freeman himself was engaged in, whereby the cattle to go to Skeleton Creek were branded "VPB" on the near side rump. This led to many animals bearing multiple brands. The Magistrate'sapproach was to disregard any "VPB" brand on the near side rump as an indicator of ownership of Zinace Pty Ltd and for obvious reasons.

The contentious animals in the appeal remain those which hadan extraneous brand, alternatively, an indistinct orillegible brand or no visible brand at all. It is inrespect of those that it seems to me the Magistrate erred. The proper approach to claims under section 425 is that the claimant should prove its title on the balance of probabilities. There is no challenge by the bank to thedetermination the Magistrate made that Zinace Pty Ltd was entitled to 10 or so cattle. Zinace's challenge in thisappeal to the Magistrate's allocation of any animal branded OLQ to the bank has failed.

There remain a small number of additional animals: theMagistrate's determination was that, "All cattle branded with the travelling brand of VPB on the near side rump and (which) had no other brand thereon, which, in effect, were unbranded prior to leaving Glastonvale, belonged to the National Australia Bank."

The reference to "travelling brand" is one to the exercise I have mentioned above in respect of which Miss Green'sevidence, importantly, went unchallenged. The Magistrate had also determined that all cattle with indistinct and/or not visible brands and cattle with a foreign brand otherthan "VPB" being held at Skeleton Creek belonged to the National Australia Bank. It is in this regard that I think he erred. In effect, I think he relieved the bank from having to satisfy the burden of proof and permitted it toestablish a title by default, as it were, because he didnot accept Mr Freeman's evidence.

The Magistrate did accept that Zinace Pty Ltd owned somecattle. He did accept and had no option about it, having regard to Exhibit 8, that in late 1999 Mr Bjorklund transferred the brand "VPB" to Zinace Pty Ltd. He also had before him in Exhibit 31 an invoice on Peter Bjorklund'sletter head relating to "25 cattle less prodigy", payment of $1,000 being required to a nominated Westpac Bank account. There was also a stamped butt of the Westpac deposit slip referring to that account and in the amount of $1,000.

It is said that Mr Freeman gave inconsistent versions of the numbers of cattle acquired from Mr Bjorklund, that he made aconcession of sales involving him being at an under value. The situation remains confusing on appeal. Apparently, aboat of unknown value was part of the consideration that wentto Mr Bjorklund over and above the $1,000. It may have beenfor cattle over and above the 25 mentioned in the invoice. Indeed, that seems to be so. I am not troubled by the invoice having been directed to Mr Freeman. Its date is 19th November 1999. The date of the deposit of the $1,000 was 25th November 1999.

It is not surprising Mr Bjorklund would see himself asdealing with Mr Freeman personally, but commonsense tells methat by this time Mr Freeman would be taking every step opento him to acquire cattle through Zinace Pty Ltd and not inhis own name. The evidence shows he has taken the usual defensive steps of people in his position of relinqui shingh is directorship of Zinace in favour of his young son. It is true, as Mr Perkins says, that the bank is in an awkward situation, having no man on the spot. It is very much in the hands of people like Mr Freeman and may count it self fortunate that Miss Green's evidence was available.

Up against the background of my assessment that Mr Free man did avail himself of every opportunity to get cattle intothe ownership of Zinace, I feel persuaded that in respect of the following items in Exhibit 26 he has succeeded. Those are No. 4 brand indistinct, No. 9 brand illegible, No. 14 brand not visible, No. 27 brand V5A, No. 29 brand not visible, No. 40 brand not visible, No. 42 brand not visible, No. 43 brand not visible, No.73 brand not visible, and No. 83 brand not visible, and I would declare the appellant entitled to those animals.

The outcome does not seem to me too inconsistent with the approach that Mr Perkins was suggesting to the Magistrate atpage 248 of the transcript. It was suggested that the Magistrate, in his "discretion", "should decide of the young beasts that clearly my client should have the majority of them (being) entitled as owner to the majority of them.What your Worship considers the majority is a matter for youbut I would suggest three-quarters, two-thirds, that sort of figure."

The appeal succeeds to the extent I have indicated. I am justinterested in the horses. Do you want to say anything aboutit, Mr Perkins? Is there anything in the stock mortgage orbill facility?

MR PERKINS: I think the reference in the mortgage is only in the schedule.

HIS HONOUR: That's right.

MR PERKINS: Sorry, in the stock mortgage. That seems to be the only reference.

HIS HONOUR: I thought it was cattle. I'm sorry I didn't think of this earlier, until I'm midway through the reasons; the evidence seems to be that the horses we're talking about were progeny of a horse that did have the OLQ brand.

MR PERKINS: That was Miss Green's evidence.

HIS HONOUR: That's Mr Freeman's brand.

MR PERKINS: That's right, yes.

HIS HONOUR: Isn't the question whether the bank ever intended to get security over anything other than cattle.

MR PERKINS: I can't answer that, your Honour, frankly at the moment and there wasn't any evidence about it. It was always presumed that that was the case.

HIS HONOUR: What, it was cattle.

MR PERKINS: No, it was also horses. But there's no evidence about it. I don't have instructions to answer it because it really was a presumption, I think, that all parties made.

HIS HONOUR: Yes.

MR PERKINS: There was one other thing, and I don't know -it was at left at the end - Mr Tomlin didn't give any evidence and it seems there's about 30 progeny of thehundred cattle and-----

HIS HONOUR: I was feeling my way towards that earlier in the day.

MR PERKINS: What your Honour's -----

HIS HONOUR: That's why I kept saying, "only 101"; it makes it easier if there are.

MR PERKINS: I'm told there's about 30 progeny. I thinkgiven the sort of summary nature of the jurisdiction, anorder apportioning those in the same proportion that effectively your Honour has done which I think-----

HIS HONOUR: Have you counted up, Mr Gorman, how many did you get out of 101?

MR PERKINS: 21.

HIS HONOUR: You've got a fifth.

MR GORMAN: A fifth, yes.

HIS HONOUR: Well, I'll take you up what you said to the Magistrate. Give them a quarter.

MR PERKINS: Of the progeny?

HIS HONOUR: Of the progeny. That's a bit better than the third.

MR PERKINS: I think from all parties point of view-----

HIS HONOUR: I agree with that.

MR PERKINS: Yes. I am not going to debate that with your Honour.

HIS HONOUR: All right. Well, I'm very grateful for that.

So I will - I declare that the progeny should go a quarter to Zinace. The rest to the bank. In the case of an uneven number, I'll give Mr Freeman a Christmas present and direct that there be rounding up in favour of Zinace.

MR GORMAN: Thank you, your Honour.

HIS HONOUR: Rather than cut an animal-----

MR GORMAN: Your Honour-----

HIS HONOUR: -----into bits. Provided Zinace gets a partial interest in progeny, it gets that one.

MR GORMAN: Your Honour, I'm unable to help like my learned friend in regard to horses, but the clear evidence of Miss Green was, indeed, as my learned friend said, she saidshe had-----

HIS HONOUR: But Mr - well, tell me what she said.

MR GORMAN: She said she had been told by Mr Freeman that all the horses which were there were the produce of an earlier horse-----

HIS HONOUR: Yes.

MR GORMAN: -----OLG.

HIS HONOUR: That's what the Magistrate went on.

MR GORMAN: Yes.

HIS HONOUR: And if you read the stock mortgage, it saysthat it comprise the horses, but if you look at the schedule, there'd never been anything in that other than cattle.

MR GORMAN: Yes.

HIS HONOUR: Let's say someone had found some sheep there, what would happen to them.

MR GORMAN: When I read it, I-----

HIS HONOUR: We don't brand sheep, of course. It doesn't matter, they're still livestock, Mr Freeman's livestock.

MR GORMAN: Yes.

HIS HONOUR: Let's say Mr Freeman had been able to do a great deal on a flock of sheep. He bought a hundred sheep and put them there.

MR PERKINS: It does on its terms apply to horses.

HIS HONOUR: I agree.

MR PERKINS: And I don't have any instructions to move from that position, your Honour, but as I say, I can't say - there was no evidence about a discussion about it at any time or intention.

HIS HONOUR: But you understand the point I'm making?

MR PERKINS: Yes, I do.

MR GORMAN: Yes. Under the 425 as was put to the Magistrate, your Honour is now sitting in the same position under 425, you have a remarkable discretion-----

HIS HONOUR: Yes.

MR GORMAN: -----and we ask you to exercise it this afternoon. We're extremely pleased with the results so far, but we would like to get the horses out of the way.

HIS HONOUR: You've only got about a ninth of the way, but I'm sure - well, it just may have done something for Mr Freeman's attitude to Courts, I don't know. You think it's palm tree justice stuff, do you?

MR GORMAN: 425 allows that absolute discretion.

HIS HONOUR: Well-----

MR GORMAN: And I understand my learned friend's reluctance under lack of instructions.

HIS HONOUR: So do I.

MR GORMAN: And I'm aware of my diary in the next few days.

HIS HONOUR: Let's just say, I'm proposing to decide that in the absence of any reference in any of the schedules to anything but cattle, that the intention that Mr Freeman and the bank shared was that only cattle should come under the stock mortgage. It's not capable of including a dog, is it?

MR GORMAN: No, I don't think you can describe a dog as livestock really.

HIS HONOUR: Well, is a horse livestock. That's a pretty - actually the old one - the old one referred to different sorts of animals, didn't it?  Yes, it did. Sheep, cattle, horses and livestock - and livestock.

MR PERKINS: Sheep, cattle, horses.

HIS HONOUR: If he had a pig-----

MR GORMAN: Hens, ducks.

HIS HONOUR: An emu, a deer. So I'll indicate now an intention to make a declaration that the horses go to Zinace Pty Ltd as well, but I'll grant liberty to apply in respect of the horses. So if you want to make a submission, Mr Perkins, how long would you like?  I want to get it out of the way next week anyway.

MR PERKINS: Say by next Wednesday, your Honour.

MR GORMAN: Yes, that will suit me, your Honour.

HIS HONOUR: If you get liberty to - I mean, this could be done in E-Court if people want to.

MR PERKINS: Yes, I'll have to take instructions and, of course, see if my client wants to make any submissions.

HIS HONOUR: That's right.

MR PERKINS: But I can certainly put the submissions in writing through the E-Court. Next Wednesday-----

HIS HONOUR: If something comes in from you, you're authorised to do it that way and I'm not sure if we're going to get the response from Mr Gorman on the E-Court; my associate will ring him up.

MR PERKINS: Could I suggest I do it by next Tuesday and, say, Mr Gorman respond by next Thursday so it can be finalised by next week in any event.

MR GORMAN: I agree with that. That's fine.

HIS HONOUR: All right.

MR PERKINS: Thank you, your Honour.

MR GORMAN: There is another matter, your Honour. We're successful on the appeal. May we have costs.

MR PERKINS: Well-----

HIS HONOUR: That's got to be divied up same sort of way.

MR PERKINS: They succeeded on, I think, 10 cattle out of about 90. Not much of a success, in my submission. In fact, my client, by the same token ought to ask for costs because there's been an appeal about all of the cattle and they've substantially failed. My client ought to have its costs.

HIS HONOUR: I think I should order the respondent to pay aquarter of the appellant's cost of the appeal to beassessed. All right. I reserved the cost of the application for security for costs. I don't know if you're instructedto raise that, Mr Perkins, but in the end the bank had come along too late. Mr Freeman was here on his own so there won't be any costs there. But I reserved the bank's costs.

MR PERKINS: I don't have instructions on it and wasn't there on the days-----

HIS HONOUR: Did I reserve the costs until 1 November or whenever you first came?

MR PERKINS: I think your Honour did.

HIS HONOUR: 30 October.

MR PERKINS: 1st of November. There is also an appearance on the 1st of November which was the first occasion I appeared.

HIS HONOUR: Yes, that's the one.

MR PERKINS: Which was when my client sought-----

HIS HONOUR: That's all about the stay.

MR PERKINS: Yes.

HIS HONOUR: The first one was ex parte.

HIS HONOUR: That order about a quarter of the costs will apply to the appellant's costs so far as they being reserved.

MR PERKINS: Thank you, your Honour.

HIS HONOUR: I mean, you were mad keen to sell these cattle.

MR GORMAN: I'm not sure I understand that, your Honour. I must have missed something.

HIS HONOUR: There's an application for a stay-----

MR GORMAN: Yes.

HIS HONOUR: -----which Zinace got.

MR GORMAN: Yes. And then we have the reserved costs from the 1st of November.

HIS HONOUR: That's when the bank came along wanting to the stay removed.

MR GORMAN: Yes.

HIS HONOUR: And I said "I'm not going to do that. Get the appeal on quickly instead."

MR GORMAN: How about the costs of this appeal, your Honour.

HIS HONOUR: You get a quarter of them.

MR GORMAN: And the other three quarters? I thought perhaps saying-----

HIS HONOUR: The bank has got to pay a quarter of your costs. You don't have to pay any of the bank's costs.

MR PERKINS: Thank you, your Honour.

HIS HONOUR: Order the documents provided on subpoena by Creswick Lawyers, Exhibit A, be returned to that firm and adjourn to a date to be fixed its application for costs of production.