Agisting horses can bring about a range of difficulties when owners neglect paying invoices. In Victoria, the Impounding of Livestock Act 1994 (Vic) enables a landholder with a horse agisted on their property to create a lien over the horse to recover costs if agistment fees were not paid for 14 or more days.
In New South Wales and the Australian Capital Territory, however, these matters are more complicated. The lack of clear agistment related legislation, coupled with often loosely drafted Agistment Agreements results in confusion when landowners want to dispose of horses agisted on their land. If the terms of an Agistment Agreement are not clear, landowners are forced to lean on the appropriate legislative provisions.
New South Wales
In New South Wales, landowners can dispose of the horse in accordance with the requirements set out in the Uncollected Goods Act 1995 (NSW) (NSW Act).
The initial step is to draft a Notice compliant with the requirements of section 26 of the NSW Act. The notice must include:
(a) The bailee’s name;
(b) A description of the goods;
(c) An address where the goods may be collected;
(d) A statement of any costs that must be met by the owner before the goods will be released by the possessor;
(e) A statement to the effect that, on or after a specified date, the goods will be disposed of unless they are first collected and the relevant charges are paid; and
(f) If applicable, a statement to the effect that the person will retain, out of the proceeds of sale of the goods, an amount not exceeding the relevant charges.
According to section 22(1) of the NSW Act, landowners must allow for a six-month period before disposing of the horse. Th NSW Act, however, is somewhat restrictive in its required method of disposal. Landowners are entitled to dispose of the horse by public auction (pursuant to section 22(2) of the NSW Act) if the horse is valued at over $500.00 and under $5,000.00.
If the proceeds of the sale are insufficient to pay the relevant charges due to the landowner in respect of the horse, the landowner may recover the amount of the deficiency from the horse owner, as a debt, in any Court of competent jurisdiction, pursuant to section 29(3) of the NSW Act.
Alternatively, the landowner can seek a Court order for the disposal of the horse pursuant to section 8 of the Act. This involves a higher commercial risk and time commitment from landowners. It does allow, however, for the debt enforcement and disposal to be dealt with simultaneously.
In the matter of Coshott v Shipton Lodge Cobbitty Pty Limited and Anor  NSWSC 556 (Coshott) the Court dealt with the debt involved in the failure to pay agistment fees. The Court found in favour of the applicant authorising disposal of the horse and, pursuant to section 8 of the NSW Act, the horse was able to be sold at public auction.
Other than this case, however, the legislation in application to agisting horses has been sparse. This makes it difficult to predict how Courts will determine agistment based cases in the future.
Australian Capital Territory
In the ACT, despite having the same name, the Uncollected Goods Act 1996 (ACT) (ACT Act) provides a different set of requirements for landowners.
According to section 8 of ACT Act, where a horse owner refuses or fails to comply with a Notice made by the landowner in to remove goods from a property the goods shall be deemed to be uncollected goods and may be disposed of in accordance the ACT Act.
The Notice required in the ACT is far less time intensive than that required in New South Wales. Pursuant to section 7 of the ACT Act a Notice shall:
(a) be in writing; and
(i) a brief description of the goods; and
(ii) the address at which the goods are available for collection; and
(iii) a statement of the times at which, or the hours between which, the goods will be available for collection at that address; and
(iv) a statement that the goods may be disposed of in accordance with part 3 if they are not collected within 7 days of the date of the request; and
(v) a statement of any costs that must be met by the owner before the goods will be released by the possessor.
The ACT Act allows for the disposal of the horse depending on its value. “Goods of significant value” have a net value of more than $500. After 3 months, horses above this value may be disposed of by public auction. The ACT Act’s shorter waiting timeframe makes the notice period more acceptable than that required in NSW. This results in fewer cases requiring taking the matter to Court.
Unlike the NSW Act the ACT Act does not provide a method for a Court ordered disposal of the horse.
The subtle difference between the Acts can have significant ramification for landowners agisitng horses. The ACT Act makes providing a notice viable option if the horse has value to cover the invoices owed. In New South Wales, however, the 6 month period increases the debt owed to the landowner and a section 8 order can often bring the matter to a resolution in a shorter timeframe.
The lack of certainty surrounding these pieces of legislation, make it important to seek legal advice before attempting to enforce an Agistment Agreement or serving a Notice on a horse owner.