KCPC Pty Ltd v Ivamar Pty Ltd (No 2)

1. [1]

   By a Statement of Claim, filed on 14 July 2020 (“SOC”), KCPC Pty Ltd, Khatambuhl Somerset Pty Limited, Silknote Pty Limited, and Patricia, herein after referred to collectively as “the plaintiffs”, brought proceedings against Ivamar Pty Ltd, Mark and Ivan, herein after referred to collectively as the “the defendants”. A Cross-claim (“CC1”) was filed by the defendants. A second Cross-claim (“CC2”) was filed by the plaintiffs.

2. [2]

   This Court delivered judgment with respect to those claims on 27 March 2023 in KCPC Pty Ltd v Ivamar Pty Ltd [2023] NSWSC 322 (“the primary judgment”), in which the following Directions on 27 March 2023 were made:

3. [3]

   In determining the issues arising from submissions filed in accordance with these Directions, the Court will hereafter use the short forms used in the primary judgment.

MATTERS ARISING WITH RESPECT TO DIRECTIONS 1 AND 2

1. [4]

   Emerging from the draft orders filed in accordance with those Directions and amended Short Minutes of Order filed by the respective interests were three issues as to the appropriate form of orders to reflect the primary judgment and any residual questions concerning damages and compensation. Those issues were as follows:

   1. (1)

      The amount owed by the defendants in respect of the shortfall in cattle numbers and the sale of cattle in December 2019 (“the shortfall issue”).

   2. (2)

      The amount owed by the cross-defendant in respect of the agreed one-off payment under the January agreement (“the one-off payment issue”).

   3. (3)

      An additional order providing the cross-claimants access to the cross-defendants’ properties for the purpose of retrieving the defendants’ “Falcon air-compressor”, if that item was not already delivered by the cross-defendants’. That issue ultimately became a claim by the cross-claimants for $120 for the air compressor (“the recovery of property issue”).

The shortfall issue

1. [5]

   The aspects of the primary judgment, particularly concerning the shortfall issue, are extracted below ([7], [470]–[476], , [487]-[495], [552] and the related pars 163 and 569(3)):

2. [6]

   Paragraph [7] of the primary judgment the Court made a finding as to the number of cattle sold in December 2019:

3. [7]

   The footnote to par [7] reads:

4. [8]

   The number of cattle sold in December 2019 is also addressed in pars [473] and [474], appearing in the extract from the primary judgment in the following paragraph.

5. [9]

   Paragraphs [470] – [476] of the primary judgment deal with the assessment of the shortfall of cattle (in the context of cattle sold by the defendants in December 2019) as follows:

6. [10]

   Paragraphs [487] – [495] of the primary judgment discuss the assessment of loss for the shortfall in cattle and are extracted below:

7. [11]

   Paragraphs [163], [552] and [569(3)] of the primary judgment discuss the January agreement and some key provisions:

8. [12]

   In the original form of the proposed orders filed by the parties, both the plaintiffs and the defendants proposed a cumulative amount (not including interest) to reflect both the shortfall in cattle numbers at the point of the termination of what was described in the primary judgment as the 2017 Lease Agreement (and the related January agreement) and the sale of cattle in December 2019. The plaintiffs proposed the sum of $406,660.17 and the defendants proposed the sum of $371,832.43. Both of those amounts were predicated upon the then acceptance by the parties that the monies received by the defendants through the sale of cattle in December 2019 was $215,482.43.

9. [13]

   In the result, in the orders originally proposed, the plaintiffs sought a net amount of $191,177.71 for the value of the shortfall in cattle and the defendants proposed a corresponding sum of $156,350.00.

10. [14]

    Before going to the proposed amended orders which were subsequently filed by the parties, it is useful to note the basis for the respective calculations as follows:

    1. (1)

       The plaintiffs calculated the value of sales based upon the Edwards Livestock Recipient Created Tax Invoices for respective sales in cattle of 110, 127 and 165 on 5 and 11 December 2019. The defendants appeared to have calculated the sale of cows on the same basis. However, what is clear from this calculation is that the plaintiffs proceeded upon the basis that the number of cattle sold was 302.

    2. (2)

       The calculation of the value of cows and bulls by the plaintiffs for the purpose of calculating the value of the shortfall in cattle proceeded from the same basis, namely, the prices paid for 302 head in December 2019 when applied to a formula developed by the plaintiffs. The plaintiffs’ assessment in that respect was set out in their written submissions as follows:

    3. (3)

       These price extrapolations were applied to a shortfall of 242 cows and 4 bulls (a total of 246 cattle which does not correspond to the Court’s finding of the shortfall in the primary judgement, after the deduction of sold cattle, of 235 cattle). In any event, the sum claimed by the plaintiffs under their formula became $191,177.74.

    4. (4)

       In the defendants’ submissions accompanying their originally proposed orders, it was contended “that there were no sales of cows, calves and bulls in December 2019 from which a market price can be derived”. I do not understand the defendants, by this submission, to be contending there were no sales of the plaintiffs’ cattle by the defendants in December 2019 (as there plainly were sales of the plaintiffs’ cattle by the defendants during that month). Rather, the defendants were submitting, in my view, that the records did not permit a delineation between the sale of cows, calves, weaners and bulls as would have permitted a clear assessment of the market price for each class of cattle. This submission has some real force because the sales records only referred to ‘heifers’ and ‘steers’. There was no designation in the sales records for cows, calves, weaners and bulls per se, although in later submissions the parties treated heifers and steers as weaners.

    5. (5)

       The defendants also submitted that the plaintiffs’ calculations were derived from the sale price of cattle in May 2020, by which time the drought had broken. In that light, the defendants made the following submission:

    6. (6)

       If by ‘derived’ the defendants meant the plaintiffs used April-May cattle prices as a basis for calculation, then the defendants’ submission may be accepted. However, whether correct or not, the formula does have the effect of producing prices, albeit discounted, from the prices for cattle in April or May 2020.

    7. (7)

       It was from that submission by the defendants that the earlier mentioned assessment of the shortfall in cattle made by the defendants of $156,350.00 was derived.

11. [15]

    The plaintiffs filed amended Short Minutes of Order on 30 April 2024 in which they sought an amount of $163,012.53 in respect of the shortfall in cattle numbers and the amount of $220,477.07 in respect of the sale in cattle in December 2019. Both amounts were exclusive of interest.

12. [16]

    The amount for the sale of cattle was derived by increasing the number of cattle sold by 7 to represent a total sum of 309 cattle, being the number of missing cattle referred to in the primary judgment.

13. [17]

    The defendants’ response, in that respect, (reflected in amended Short Minutes of Order filed on 3 May 2024 – “the defendants’ amended orders”) referred to documentation relating to the sales concerning, it was contended, the number of weaners presented for sales (comprising, on the defendants’ case heifers and steers) and the number of cattle sold as reflected in invoices thereafter. The former represented a number of 309 cattle; the latter 302.

14. [18]

    As to the shortfall in cattle, the plaintiffs’ revised position, namely, the sum of $163,012.53, was before based upon the following propositions advanced by the plaintiffs:

15. [19]

    The defendants also shifted their position as to the assessment of the shortfall in cattle in their Amended Short Minutes of Order, making the following submission:

16. [20]

    As was observed in the primary judgment (at [7]), there was an inconsistency between the number of cattle sold in December 2019 by the defendants, between that stated by the parties in their joint chronology, namely, 311 cattle were sold by the defendants in December 2019 and the National Livestock Identification System (“NLIS”) and the ‘European Union Vendor Declaration (Cattle and Waybill)’ documentation, showing 309 cattle were sold. In the primary judgment, the Court proceeded upon the basis of the then joint position of the parties that 309 cattle were presented for sale in December 2019.

17. [21]

    However, what was not discussed in the primary judgment, as it was not the subject of submissions prior to the delivery of the primary judgment, was the number of cattle reflected in the invoices for sale of cattle by the defendants in December 2019. In additional submissions regarding missing and sold cattle accompanying the plaintiffs’ amended orders, it was contended that the “known sales record”, namely, the invoices, "were for 302 head: 110 sold for $82,427.23 net on 5 December 2019; 192 sold for $133,055.20 net on 11 December 2019. The subtotal for the sold cattle for which there are invoices is $215,482.43”. The plaintiffs further submitted: “If the other 7 head were sold for the average price of the other 302 ($713.52 net; that is, $215,482.43/ 302) at the same time, they fetched $4,994.64 and increased the total net figure for 11 December 2019 to $138,049.84...”. That increase, in the plaintiffs’ submission, brought the total monies claimed by the plaintiffs for the cattle sold in December 2019 to $220,477.07.

18. [22]

    In the defendants’ amended orders, they contended that the invoices received from Edwards Livestock Co for sales of the plaintiffs’ cattle in December 2019 showed the sale of cattle as 302. The defendants’ submitted that the Court should make orders for 302 cattle sold on the following basis:

19. [23]

    A significant difficulty with ignoring the 7 cattle that were presented for sale in December 2019 which are not reflected in invoices provided to the defendants (“the defendants’ amended sales position”) and the Court’s finding in the primary judgement is that the Court calculated the shortfall of cattle as 239 on the basis of deducting 309 (being the agreed position as to cattle sold in December 2019) from the total deficit of 548. If the Court did not give relief for the 7 cattle under the December 2019 sales, then they must as a matter of logic, consistency and fairness be accounted for by way of addition to the shortfall in cattle of 239 (see paragraph 473 of the primary judgment).

20. [24]

    A further difficulty with the defendants’ amended sales position is that there is no evidence before the Court as to the fate of the 7 unaccounted for cattle other than they were in the possession of the defendants for sale. The evidence does not disclose whether the defendants did or did not recover payment for them, although I acknowledge that in later submissions by the defendants as to receipt of payment for sales recorded in bank records, it appears that the payments received until then were for the sale of 302 cattle. There is no evidence the cattle were returned to the plaintiffs; the records brought to the Court’s attention only indicating they were presented for sale.

21. [25]

    In my view, the appropriate course, in this respect, is to adhere to the findings of the primary judgment (noting that no submissions were expressly made seeking the vacation of that finding), notwithstanding further submissions made after judgment presented on the topic (when both parties altered their original positions). Acknowledging that the records show 309 cattle were presented for sale in December 2019, the missing cattle should be accounted for in the way submitted by the plaintiffs in the submissions accompanying their amended proposed draft orders. That is, the missing cows shall each be given the average value of $713.52 ($215,482.43/ 302), which gives the overall sum value of the cattle sold in December 2019 to be $220,477.07.

22. [26]

    I turn to the shortfall in cattle.

23. [27]

    The approach, adopted by the plaintiff in the original and amended orders, in relation to the remaining shortfall, sits contrary, in my view, to the terms of the primary judgment because first, it used $713.52 for weaners as the basis of the calculation for cows, calves and bulls and secondly, the plaintiffs employed an averaging process to calculate values that involved using April-May 2020, post drought, figures which the primary judgment eschewed.

24. [28]

    It may be accepted that the plaintiffs endeavoured to adjust for the effect of post drought prices by calculating the difference price between the (assumed), weaners in December 2019 and the prices for such cattle in April-May 2020. However, in my view that approach still has the effect of importing into the calculation of sale prices the prices of April-May 2020 (post-drought) even though in a formula designed to discount from the April-May 2020 prices. I will put aside for present purposes the mathematical difficulties of calculating an average of an average.

25. [29]

    In the defendants’ submissions accompanying their originally proposed orders, it was contended that “it is to be recalled that there were no sales of cows, calves and bulls in December 2019 from which a market price can be derived…”. It was further contended in that light, that “the best evidence of the drought value of cows, calves and bulls on the various properties at the end of 2019 is the agreed value of cows, calves and bulls that was reached in the January agreement which is reproduced at [552] of the Court reasons…”.

26. [30]

    The plaintiffs’ submissions accompanying their amended orders contended that the defendants’ entreaties to use the January figures provided by the January agreement should be rejected; the plaintiffs contending that “those figures were estimates made on 20 January 2020 of future sale prices...”. However, for the reasons appearing below I reject that contention.

27. [31]

    The email of 23 January 2020 which set out the terms of the January agreement, provided the agreed values for the cattle at that time under the heading “General estimate of the herd”. That heading is not consistent with the parties to the January agreement expressing the ‘future sale prices’. Further, the plaintiffs do not point to any evidence in support of the submission that the January figures provide ‘future sale prices’ for cattle. The plaintiffs’ assertion that the January figure of $620 per weaner is “demonstrably low” is erroneous. The price per weaner per the January Agreement is $850 (see [552] of the primary judgment) and the figure of 620 represents the number of weaners in the cattle heard, not the value attributed to them in January 2020. Finally, the values assigned to cattle in the January agreement are demonstrably lower than those given for April-May sales in the affidavit of Kirstie affirmed on 4 December 2021

28. [32]

    As a result of these difficulties, there is an appropriate basis to use the January agreement prices for cattle to estimate the value of the shortfall. There are three other factors pointing to the appropriateness of utilising the prices in the January agreement.

29. [33]

    First, the January figures were agreed between the parties as appropriate values for cows, weaners, calves and bulls at that time. These values were selected in the context of the parties agreeing on a general estimate of the value of the herd in January 2020.

30. [34]

    Secondly, the figures represented drought prices, which is the context in which the breach of contract occurred.

31. [35]

    Thirdly, the January figures were approximate in time to the December 2019 sales and, in my view, represented a reasonable proxy for December sale figures (the Court having indicated in the primary judgment that the prices for the missing cattle should be based upon December 2019 figures).

32. [36]

    I accept, therefore, that the assessment of damages or loss for the shortfall of cattle should be based on the cattle prices in the January agreement.

33. [37]

    In submissions accompanying the defendants’ amended proposed orders, contrary to the submissions accompanying their originally proposed draft orders, it was proposed that the prices for the sale of cattle in the January agreement should be discounted. This was predicated upon the plaintiffs’ contentions accompanying their originally proposed orders which were based, in part, upon the average sale price for weaners in December, namely $713.20 per head being less than the sale price for weaners in the January agreement, namely $850 per head. It was contended there should be a general reduction in the January agreement prices. It was submitted that these discounted prices were more reliable because the figure represented the actual sale prices for weaners in December 2019.

34. [38]

    I do not accept this submission accompanying the amended proposed orders by the defendants, essentially for the reasons advanced by the defendants in support of their originally proposed orders to utilise the prices agreed in the January Agreement, namely, there was no sales of cows, calves and bulls in December 2019 from which a market price can be derived and the plaintiffs did not lead any evidence as to the market value of cattle in the relevant region in November/December 2019. The most applicable counterpart is not, in my view, to be derived from an extrapolation from the sale price of weaners in December 2019 but from the actual prices in January. That the Court may have used heifer and steer numbers in order to calculate the shortfall in numbers of cows, calves and weaners in the primary judgment does not, in my view, warrant an alteration in this approach as the Court was there dealing with a different subject.

35. [39]

    In the result, the defendants’ alternative approach contained in their submissions accompanying the defendants’ originally proposed orders shall be adopted as to the calculation of the value of the shortfall in cattle, that is, by using the prices that appeared in the January agreement. The total amount for the remaining shortfall of 169 cows, 66 calves and 4 bulls is $156,350.00

36. [40]

    The sum total which should be awarded to the plaintiffs in relation to the shortfall issue (the shortfall of cattle and sale of cattle) is $376,827.07 ($156,350.00 + $220,477.07).

The one-off payment issue

1. [41]

   In their amended Short Minutes of Order, the defendants persisted with a claim in this respect for $22,000, contrary to the terms of the primary judgment. The amount payable for CC1 shall be $20,000.

The recovery of property issue

1. [42]

   Under the plaintiffs originally filed Short Minutes of Order, no provision was made with respect to this CC1. The defendants claimed in their originally proposed orders access the cross-defendants’ properties for the purpose of retrieving (if not delivered by the cross-defendants) the Falcon air-compressor. The defendants did not pursue the remaining items granted by the Court out of their CC1, namely, 2 small box trailers, 2 horses and a molasses tank and shed ([586]). By the amended draft orders by the defendants, the orders sought was that the cross-defendants pay the cross-claimants $120 for the air compressor. No dispute was raised by the cross-defendants in that respect and accordingly, the order proposed in paragraph [10] of the defendants’ amended Short Minutes of Order shall be the order made by the Court.

Interest

1. [43]

   The orders proposed by the parties as to interest naturally reflected their respective submissions as to the resolution of issues arising with respect to directions 1 and 2. In that respect, the calculation will need to be further addressed in the light of the above conclusions.

2. [44]

   However, aside from that consideration, there was a significant commonality in the parties positions. Interest was calculated pursuant to s 100 of the Civil Procedure Act 2005 (NSW) on 10 judgment amounts in respect of the SOC, each having a different starting date for the calculation of interest. There was a common ground as to the starting date adopted for the calculation of interest in those respects, save as discussed below. The plaintiffs made no submissions regarding the CC1 but a consistent approach was adopted by the defendant in the calculation of interests for those Cross-claims.

3. [45]

   The dispute between the parties position concerned two aspects of their calculations of interest as reflected in their respective Tables as to interest.

4. [46]

   The first concerned the shortfall in cattle. The same starting date for the calculation of interest was adopted by the parties in that respect, namely, 1 December 2019. However, a difference arose from the principal from which interest was calculated. That matter is resolved by giving effect to this judgment as to matters arising under Directions 1 and 2.

5. [47]

   The second dispute concerned the calculation of interest with respect to losses occasioned by the sale of cattle in December 2019.

6. [48]

   There was a common position as to sale of cattle on 5 December 2019 and the amount of interest payable (although I note the starting dates on the plaintiffs’ and defendants’ Tables differed). However, the parties disagreed as to interest payable on cattle sold of 11 December 2019.

7. [49]

   The plaintiffs calculated interest for all cattle sold on 11 December 2019 from 12 December 2019, whereas the defendants broke these sales down into two amounts. The defendants’ calculated interest on 65 cattle sold on 11 December 2019 from 5 February 2020 and 113 cattle sold on 11 December 2019 from 2 March 2020. The basis for the difference of these starting dates argued by the defendants was that there had been an examination of the “actual bank statements” showing the date in which payments for the cattle sold were “received”.

8. [50]

   It may be noted, at the outset of the resolution of that issue, there is an error in the Table accompanying the defendants’ submission on interest and costs for the sale of 113 cattle with respect to which the defendants’ claimed a starting date of 2 March 2020. The principal amount shown in the defendants’ Table was $54,174.06 in that respect, whereas the amount shown in the defendants’ submission on interest and costs corresponding to the same sale is $78,881.14. The amount shown in the defendants’ Table is plainly incorrect. The use of the latter figure (in the defendants’ submission on interest and costs) corresponds mathematically (when added to sales of cattle on 5 December and another sale of cattle on 11 December 2019) to the defendants’ submission on interest and costs as to the correct sum for the sale of cattle in total pursuant to Directions 1 and 2 of $215,482.43.

9. [51]

   Once that issue is put aside, in this fashion, the only issue existing with respect to the calculation of interest for cattle sold was the starting date for the calculation of interest for cattle sold on 5 and 11 December 2019. The plaintiffs proposed a starting date of 6 December 2019 and the defendants proposed 5 February 2020 for cattle sold on 5 December 2019. For cattle sold on 11 December 2019, the plaintiffs contended that interest should be calculated from 12 December 2019. In the Table accompanying the defendants’ submissions on interest and costs, the defendants’ proposed two dates for calculation of interest, namely, 5 February 2020 (for 65 cattle) and 2 March 2020 (for 113 cattle).

10. [52]

    The basis for the latter commencement dates argued by the defendants was that there had been an examination of the “actual bank statements” showing the date in which payments for the cattle sold were “received”.

11. [53]

    In my view, the calculation of interest should be from the date that the cattle were sold as this at point at which the defendants gave effect to their misrepresentation by the sale of the cattle. The fact there was a delay, for whatever reason, in the receipt of monies by the defendants from the misrepresentation is immaterial.

12. [54]

    Accordingly, interest should be calculated based upon the “starting dates” proposed by the plaintiffs in the Table for the calculation of interest accompanying their submissions on interest and costs. I understand the plaintiffs have taken into account in their Table on interest the 7 cattle giving rise to the total compensation for the sale of cattle in December 2019 of $220,477.07.

13. [55]

    It follows that interest will be awarded as to the calculation of damages with respect to the SOC in accordance with the Table for the calculation of interest prepared by the plaintiffs adjusted with respect to the Court’s finding above as to damages for the shortfall of cattle (that is, to give effect to the Court’s decision given in the resolution of submissions made with respect to Directions 1 and 2). There was no dispute as interest with respect to CC1.

Costs

1. [56]

   The plaintiffs’ primary position on costs was expressed in the following terms:

2. [57]

   The plaintiffs, in their submissions on interest and costs also proposed an alternative way of assessing costs which was expressed:

3. [58]

   The plaintiffs’ submissions in support of those orders were as follows:

   1. (1)

      The plaintiffs were successful in seven of the categories of claim brough by them in the SOC and CC2.

   2. (2)

      The plaintiffs did not pursue four claims. Those claims occupied a negligible portion of the evidence, submissions and court time. The plaintiffs’ were unsuccessful in two respects, namely, management fee and the one-off payment.

   3. (3)

      The overwhelming portion of the parties evidence and submissions and time during the trial was devoted to the shortfall in cattle numbers and the defendants’ misleading conduct. The plaintiffs were successful in these claims. The areas that they were unsuccessful in required “almost no additional resources beyond what was required to support the successful claim for relief from reliability to pay an incentive payment”.

   4. (4)

      The plaintiffs were successful in resisting the claim for incentive payment.

   5. (5)

      The defendants further amended defence concerned five categories of claim. The defendants were successful in three of those categories. None of the defendants’ successful claims occupy a substantial portion of the defendants’ evidence, submissions or court time.

   6. (6)

      The matters on which the defendants’ Cross-claim were successful “account for less than 10% of the defendants’ costs”.

   7. (7)

      Further the defendants amended their defence and their Cross-claim “twice”. Costs orders were made against the defendants in favour of the plaintiffs in relation to amendments on 28 August 2020 and 15 October 2020.

   8. (8)

      The plaintiffs incurred costs in defending the claims unsuccessfully advanced by the defendants in their CC1.

   9. (9)

      Overall, the principal issues raised by the plaintiffs’ pleadings account for the great majority of the evidence and court time. The costs in relation to the disputes raised on those pleadings will be much greater than the costs in relation to the defendants’ CC1.

4. [59]

   The defendants submitted in their submission on interest and costs that costs should follow the event. The plaintiffs should have their costs of the SOC and the cross-claimant should have their costs of CC1 both on a party/party basis.

5. [60]

   The defendants also submitted that the overall apportionment of the costs was a matter for the costs assessor.

6. [61]

   The defendants also alluded to the fact that the amount of the judgment on the missing cattle was substantially less than the amount sought by the plaintiffs in opening.

7. [62]

   Alternatively, the defendants submitted that the Court should have regard to a comparison between the amount the subject of each judgment. The comparison between the parties relative success might indicate that the costs of the proceedings should be shared proportionally to the money value of their success.

8. [63]

   In the primary judgment, the Court made the following observations regarding costs (at [604]):

9. [64]

   In consideration of the apportionment of costs, relevant legal principles were discussed in Kvelde v State of New South Wales (No 2) [2024] NSWSC 196 at [18] – [19] as follows:

10. [65]

    In respect of claims by the plaintiffs for breach of contract, the primary judgment records the following causes of action (at [24]) as follows:

11. [66]

    The particularisation of these claims are set out at [25] and [26] of the primary judgment as follows:

12. [67]

    Certain claims were abandoned by the plaintiffs as set out in [27] of the judgment as follows:

13. [68]

    The Court found for the plaintiffs with respect to the first cause of action, namely, a breach of the 2017 Lease Agreement and, in that respect, broadly found for the plaintiffs for each of the claims listed in [25] of the primary judgment. The Court accepted the plaintiffs’ construction of the 2017 Lease Agreement (at [94] of the primary judgment)

14. [69]

    The plaintiffs were unsuccessful in the pursuit of the second cause of action, namely, the November agreement.

15. [70]

    The plaintiffs were successful as to the third cause of action, namely, the January agreement and CC2 although with respect to CC2 the Court expressed (at [595]) as follows:

16. [71]

    The claim for the shortfall of cattle by the plaintiffs appears at [478] of the primary judgment and is for a sum of $796,960.52.

17. [72]

    That amount claimed is, of course, considerably higher than the amount which will be awarded to the plaintiffs in this judgment for damages arising from the shortfall of cattle. A significant portion of that difference is because the plaintiffs’ calculation was predicated upon the shortfall of 548 cattle which was found to be correct (at [400], primary judgment) but reduced, to take into account the sale of cattle in December 2019 (at [475], primary judgment), to a total shortfall of 239 head. However, there are other elements which ultimately were not established by the plaintiffs. First, the calculations were predicated on sales in April and May 2020 rather than the date of termination of the 2017 Lease Agreement. The plaintiffs’ position in that respect persisted, albeit in an amended form, in their additional submissions regarding missing and sold cattle responding to the Directions 1 and 2 of the primary judgment despite the Court finding against assessing cattle prices in that way in the primary judgment (see [480]). The additional submission similarly failed.

18. [73]

    Secondly, the plaintiffs failed to establish their claims for damages with respect to offspring (see [502]).

19. [74]

    It might also be noted that the plaintiffs acknowledged that, with respect to the defendants’ further amended defence, the defendants were successful in three of five categories. I will further discuss the contribution to court time arising from the respective cases of the parties below.

20. [75]

    As to claims under the ACL, the Court found for the plaintiffs, the Court found that the defendants misrepresented to the plaintiffs that there were enough animals in the plaintiffs heard that the defendants could sell 400 cattle without reducing the herd profile, which was intact (see at [596]). The Court found (at [596]):

21. [76]

    However, again in the primary judgment, damages for the sale of cattle were to be calculated on December 2019 prices.

22. [77]

    The plaintiffs’ relied upon s 18 of the ACL to defeat the Cross-claims brought by the defendants as to the 10% incentive, the management fee and the one-off payment.

23. [78]

    The plaintiffs were partially successful in that respect as follows:

24. [79]

    Correspondingly, the defendants were successful in the CC1with respect to the management fee and one-off payment but not the 10% incentive.

25. [80]

    As to the balance of the CC1, the Court found at [600] as follows:

26. [81]

    Overall, the defendants’ CC1 was resolved as follows (at [592]):

27. [82]

    Contrary to the additional submissions accompanying the amended proposed orders of the plaintiffs with respect to the determination at [4] in the extract in the immediately preceding paragraph of the judgment, the Court did not confine the relief granted to an air compressor, but rather ordered access to the following: an air compressor, 2 small box trailers, 2 horses and molasses tank and shed. In the final draft amended orders proposed by the defendants, relief was only sought with respect to the air compressor.

28. [83]

    When seen in light of the above analysis, this is a case where the parties have had a mixed outcome in the proceedings and it is appropriate to apportion costs in the respective claims. I have approached this task with a broad-brush basis having regard to the particular outcomes of the proceedings giving rise to the primary judgment as discussed above and my general evaluation of the parties’ respective claims.

29. [84]

    Overall, I consider that the most substantial component of evidence and submissions in the trial was devoted to the shortfall of cattle numbers and the defendants; misleading conduct and that the award of costs should reflect the success of the plaintiffs in this respect, albeit tempered by failures in the plaintiffs’ case which are also as recorded in my judgment above including as to the assessment of damages or interest.

30. [85]

    The outcome of the CC1 substantially favoured the defendants, but overall, the issues raised by in the CC1 amounted to a relatively small of portion of the evidence and submissions in the proceedings.

31. [86]

    I have also made provision in the award of costs for the costs order against the defendants in favour of the plaintiffs on 28 August and 15 October 2020.

32. [87]

    Lastly, I have factored into the award of costs the mixed success of the parties on the assessment of damages, interest and costs reflected in this judgment.

33. [88]

    The Court rejects the defendants' contention that the Court would award costs of the SOC to the plaintiffs and costs of the CC1 to the defendants with the apportioning of costs left fully to a costs assessor.

34. [89]

    The Court will make an award of costs in which the defendants pay 80% of the plaintiffs' costs of the proceeding, with such orders expressed in a form akin to that proposed in the alternative orders as to costs sought by the plaintiffs in their submissions on interest and costs.

ORDERS AND DIRECTIONS

1. [90]

   The plaintiffs shall file and serve Short Minutes of Order reflecting this judgment and the previously agreed elements of the originally filed Short Minutes of Order within 7 days of the publishing of this judgment.