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- Unreported Judgment
Scarff v Manzo QDC 82
DISTRICT COURT OF QUEENSLAND
Scarff & Anor v Manzo  QDC 82
CANDESA SCARFF AND DARRYL SCARFF
District Court, Brisbane
5 April 2019
5 April 2019 (Ex tempore)
Order as per draft as amended.
EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – where there is a duty of care arising under the Animal Care and Protection Act 2001 – where the plaintiff sought payment into court – where the plaintiff sought removal of animals – whether the balance of convenience favours granting interlocutory relief
Animal Care and Protection Act 2001, s 12, s 17
District Court Act, s 68, s 69
Supreme Court Act 1995, s 246
Supreme Court of Queensland Act 1991, s 11
J Ford for the plaintiffs
Michael Dwyer Solicitors for the plaintiffs
Mr Manzo was self-represented
- I intend to make an order in terms of paragraphs 1, 2, 3, 4 and 7 of the draft provided by the plaintiffs. I am satisfied that it is appropriate to do so and that I have power to do so having regard to s 68 and s 69 of the District Court Act and s 246 of the Supreme Court Act 1995 and s 11 of the Supreme Court of Queensland Act 1991. The substantive dispute in this matter arises under two written contracts.
- There is also an alleged oral agreement for the agistment of the defendant’s horses on the plaintiffs’ property. The plaintiffs say that the defendant owes them a debt or damages under the agistment agreements. The defendant disputes this. Currently, nine of the defendant’s horses are on the plaintiffs’ property. That is undisputed. It is also undisputed that there has not been agistment payments since 21 December 2018. The defendant conceded this during oral arguments. The plaintiffs say that since at least 5 August 2018, the defendant has been in arrears under the agistment agreements. That is in dispute.
- The defendant accepts that the two written agistment agreements apply with respect to seven horses that are currently on the plaintiffs’ property. The defendant accepted during oral argument that under those written contracts there is a right to a contractual lien. He disputes whether it has been validly exercised. He says that at the time that the plaintiff sought to exercise it there was no debt that had been outstanding for 90 days. With respect to the other two horses, the defendant’s position is that there is no contractual lien with respect to those horses. The written contracts that the defendant accepts applies with respect to seven of the horses contains the clauses:
- All monies owed must be paid in full before the horse/s leave the property. Darryl and Candesa Scarff are entitled to retain possession of the owners’ horse/s named in the contract until all fees owed to Darryl and Candesa Scarff are paid in full.
- If the default of payment has continued for ninety (90) days after the due date for payment; Darryl and Candesa Scarff may enforce the sale of the horse/s to cover default of payment. The sale of the horse/s will be by auction or private contract. For the purpose of exercising the power of the sale the owner of the horse/s irrevocably appoints Darryl and Candesa Scarff as its attorney to sell the horse by public auction or private contract and to do all acts and things incidental to the sale including transportation and preparation of the horse, payment of the sale commission and other expenses and to receive purchase price for the horse/s and give a valid receipt and discharge for the sale proceeds of the horse/s.
- Upon enforcement of the sale of the horse/s, Darryl and Candesa Scarff are entitled to apply the proceeds of the sale; firstly, as a payment of all costs and expenses in connection with the sale including transportation costs, veterinary expenses if needed, auctioneers fees, advertising expenses and payment for Darryl and Candesa Scarff time at $95 per hour. Secondly, as payment to Darryl and Candesa Scarff for all charges, fees and monies due to Darryl and Candesa Scarff under the terms of this agreement. Thirdly, as payment to the owner of the horse of the balance of the proceeds of sale.
- The plaintiffs have made an application in the proceeding. The application was first returnable on the 2nd of April 2019. At that time, there was no appearance in person by the defendant, and for reasons including difficulty hearing the defendant, who had obtained leave to appear by phone, the matter was adjourned to today. The orders sought by the plaintiff are that on the plaintiff’s usual undertaking as to the costs, the order of the Court is that:
- On or before 12 April 2019 the defendant pay into Court the amount of $12,715, pending resolution of the substantive proceedings,
- By 14 days after complying with order 1 above, the defendant cause to be removed from the property at 520 Cedar Creek Road, Cedar Creek, Queensland (described as Lot 1 on SP187767) (the Property) all horses or other livestock of any kind depastured or stored on the Property and owned by the defendant, be it in a personal, representative or other capacity.
- That the defendant shall give no less than 24 hours’ notice given during the hours 9 am to 5 pm, to the plaintiffs or their legal representatives, of the defendant’s intention to remove the horses or other livestock in accordance with order 2 above, to ensure adequate access is granted to the Property for their removal.
- Following the removal of all horses or other livestock in accordance with order 2 above, the defendant, by his servants, agents or otherwise, is restrained from depasturing or storing any horses or other livestock of any kind of on the Property.
- Pursuant to rule 117, the claim, statement of claim and interlocutory application in these proceedings was informally served on the Defendant on 12 March 2019 such that service for the purpose of the rules was made on that day.
- The defendant resisted that relief. The plaintiffs submit that the Court’s intervention is required and an interlocutory injunction is just and convenient. It submits that the Court’s intervention is required on the basis that the plaintiffs owe a duty of care to the horses on their property and failure to meet that duty can result in prosecution, particularly under s 12 and s 17 of the Animal Care and Protection Act 2001. The plaintiffs submit that the presence of the horses on the property is interfering with other parts of the plaintiffs’ business and they are not currently being rewarded for their responsibility for, or storage of, the horses.
- The plaintiffs indicated that they are minded to sell the horses pursuant to the agistment agreements and apply the proceeds as permitted under the contracts after 90 days of arrears; however, they flagged that, from their point of view, there are issues in doing so. First, the defendant, they say, has provided only limited information about the heredity of the horses as thoroughbreds, making it difficult to sell them as such. Second, they say that the defendant asserts in other proceedings that the value of his thoroughbred horses is in the order of $50,000 to $70,000. Third, they say that they have approached buyers for the horses; however, the prices indicated by the buyers are less than the value asserted by the defendant.
- They are, for those reasons, cautious about selling the horses under the agistment agreement for values less than those asserted by the defendant. However, they are concerned that leaving the horses on the property presents an interference with the balance of their business and a statutory liability for them for which they are liable to prosecution. They also are concerned that leaving the horses on the property presents a danger to them, their invitees and the horses in circumstances where they say the horses have not been properly handled or broken and are dangerous. They are also concerned that leaving the horses on the property presents the risk of additional out-of-pocket liabilities for them in circumstances where they are statutorily responsible for the horses. They say the defendant has a history of failing to make necessary veterinary, farrier, dentistry and feed arrangements for the horses.
- They seek to invoke the Court’s equitable jurisdiction by way of interlocutory injunction to preserve their contractual security until the substantive determination of matters in issue, as well as to remove their statutory liability for the wellbeing of the horses in circumstances where they are not presently being rewarded for that liability. Other reasons relied on include to stop the horses from interfering with their business, and to provide the defendant an opportunity to preserve the value of his horses in circumstances where, if the plaintiff sells the horses, they may not be able to realise their alleged value.
- The defendant disputes that he asserts that the value of the thoroughbred horses is in the order of $50,000 to $70,000. He said from the bar table at the hearing that the nine horses together are not worth more than $12,000. However, he also said that if they were sold, he would suffer other economic losses, including losses from having lost the ability to breed those horses by his stallions. He made reference to economic losses of that nature being in the order of up to $100,000. In short, he said that the horses were worth more to him and he would prefer not to sell them.
- The defendant indicated that he was willing to remove the horses and that 21 days to do so would be sufficient time. The defendant says that these proceedings involve the plaintiffs seeking to have the court give them comfort that they should proceed to exercise their claimed right to sell the horses and that the court should not do so. He says if they wished to exercise their power of sale, they should move to do so. He says that he waives any right to seek an injunction stopping them from taking such a course of action. However, he also made a number of statements to the effect that if those rights are not validly exercised, he would suffer an economic loss in the order of $100,000 and that would be a matter for others later. I understood his submissions to be a veiled threat that if the plaintiffs did not realise the proper value, they would pay the consequences for it.
- The primary order sought is a mandatory injunction, requiring the respondent to pay money into court in lieu of the security over the horses and to remove the horses from the property. The court may grant an injunction by interlocutory order of the court where it appears just or convenient that such an order should be made. Any such order may be made either unconditionally or upon such terms and conditions as the court shall think just. I am cognisant that the plaintiffs’ claim is disputed by the defendant. However, it is not necessary for me to determine that dispute in order to be satisfied that it is appropriate for an interlocutory injunction to be granted.
- On the material before the court, I am satisfied that the plaintiffs have a prima facie case in breach of contract. There is evidence of a bargain between the parties and that the plaintiffs performed the bargain but have not been paid or have not been paid in full. There is a prima facie case to be made for breach of contract or repudiation, in circumstances where the defendant has at least seven horses, and potentially nine horses, on the property for which there is contractual obligations, and where, on the plaintiffs’ material, the defendant has been in arrears since August 2018 and has paid nothing since December 2018. That the total amount owed under the agistment agreements is disputed by the defendant does not detract from the prima facie case. Whether the total amount owed is in fact owed would be a matter for resolution at a final trial of the proceedings.
- I am satisfied that the balance of convenience favours the orders sought being made for a number of reasons. First, removing the horses is ultimately a step that would be required by the defendant at the end of the agistment agreement, subject to him having paid all the outstanding amounts. An order that he remove them is simply bringing forward a step otherwise required.
- Second, should the status quo remain, the plaintiffs are in the difficult position that they are statutorily responsible for the wellbeing of the horses, under liability of prosecution, but are not presently being rewarded for that liability nor in a position to end that liability while the horses remain on the property.
- Third, should the defendant simply remove the horses from the property without paying an amount into the court, the plaintiffs lose permanently the potential benefit of any contractual security. Whether that benefit exists is a matter that is yet to be determined, but the payment into the court preserves the asserted right of security.
- Fourth, granting the orders sought provides the defendant with an opportunity to realise the full value he asserts in the horses, a value that the plaintiffs are not in a position to realise, should they exercise their power of sale. That full value is not necessarily limited to the value of the horses themselves, but includes, as said by the defendant, the value to him that the horses present by giving him the opportunity to breed them with his stallion.
- Damages are not a sufficient remedy to the plaintiff, in my view, if the horses remain on their property or are removed without alternative security, because of the ongoing statutory obligation to care for the animals which exposes the plaintiffs to penalty if they fail to care for the horses. There is also potentially, based on the plaintiff’s evidence, which is disputed by the defendant, a risk to the plaintiffs and the horses’ health and wellbeing, because at least one of the horses has not been broken by the defendant. Damages are also potentially not sufficient, given the plaintiffs are not currently being rewarded for the statutory care of the horses.
- To simply allow the defendant to remove the horses from the property, in circumstances where there is an asserted right of security, without a countervailing order requiring the defendant to pay money into the court would rob the plaintiffs of their asserted right. Certainly, it would not preserve the asserted right.
- At no stage has the defendant disputed service in the oral arguments that he has made today.
- Published Case Name:
Scarff & Anor v Manzo
- Shortened Case Name:
Scarff v Manzo
 QDC 82
05 Apr 2019