“A few years ago, my father who farmed all his life on the family farm died, and his herd number was transferred into my mother’s name. Over the past few years, my brother (who is estranged from all other family members and does not have a herd number, or own any land) has been frequently buying and selling livestock using my mother’s herd number without her permission. This also involves the registering of calves. It seems common practice that livestock marts will accept livestock in one person’s herd number, yet sell the livestock in the name of another person who does not have a herd number. Can you please advise us about the consequences of the above? How can we get my estranged brother to stop using this herd number?

I assume that you have asked your brother to cease using your mother’s herd number but to no avail. From a practical perspective, I would suggest that your mother contact the local mart and speak to the mart manager and voice her concerns and thereafter put it in writing to the mart manager.

I understand that there are two main systems of software used in marts whereby the name of the person to whom the animal is registered automatically comes up on the screen when that animal is presented for sale in the mart and that cheques are automatically issued to the registered owner.

I understand the only way to issue a cheque to someone other than the registered owner is to cancel the cheque to the registered owner and reissue a new cheque in the name of someone other than the herdowner.

Consequently, personnel in the mart should be aware that the animals are not registered to your brother as they would need to override the system each time they issue a cheque to him and consequently you should query why they are making this concession for him.

I am not aware of a legal requirement whereby a mart must issue a cheque to the registered owner. However, it could be argued that your brother is committing forgery as presumably he is signing your mother’s name on the blue cards without her consent.

Terms and conditions

You would also need to consider the terms and conditions of sale in the mart. These specify the terms of the contract between auctioneers, sellers, bidders, purchasers and the general public in the sale and purchase of livestock through the mart. A sample copy that I have reviewed provides that the auctioneers do not bind themselves to receive all stock consigned to them for sale or if received to expose them for sale and they do not guarantee that stock advertised will be sold. Consequently, the mart could refuse to accept the stock from your brother if they so wish given that he appears to be using your mother’s herd number without her consent.

Further, the sample copy terms and conditions of sale that I reviewed provide for disclosure of the owner’s name whereby each lot shall be entered in its owner’s name and the name of the owner of each lot as given to the auctioneers shall be declared by them, if required, when the lot is put up for sale. You will note that the clause specifies the owner rather than the registered owner so it is debatable whether your brother is the owner given that you do not appear to be disputing that the animals belong to him; rather you are disputing the use by him of your mother’s herd number.

The terms and conditions further provide that where a person who is an agent offers animals for sale, he shall be bound to disclose the name and address of his principal and in such case both the principal and the agent shall be jointly and severally liable under the contract of sale. This clause poses a potential problem for your mother as if she claims that she is the principal, ie the owner of the animals offered for sale, she may be deemed to be jointly and severally liable under the contract for sale.

For example, if your brother sold stock as a maiden heifer or a dry cow and it turns out to be otherwise, both your brother and your mother could be held responsible for any claims arising. Obviously, your mother would have a defence in that she had not appointed your brother as her agent, but nonetheless she could potentially be caught up in a dispute. Further, the terms and conditions of sale provide that all lots are accepted for sale on the terms that the seller warrants that he has a right to sell same and undertakes to indemnify the auctioneers against all actions which they may be exposed to by reason of any defect in the seller’s title.

However, it is debatable whether the auctioneers could successfully rely on this clause to absolve themselves of any liability in circumstances where they should be aware that your brother is not the registered owner of the stock and further if you mother formally requests the mart to cease trading with her son on the basis that he is selling stock through her herd number without her consent.

Consequences

A herd number is an administrative device issued by the DVO for a distinct herd, solely for the purpose of disease control.

A herd number issued by the Department to any particular individual acting as the keeper does not infer ownership of lands or any animals tested under that herd number.

There are onerous obligations by being registered as herd keeper, such as tagging, registration and identification of all animals, notifying births, deaths, movements, keeping a herd register, testing, etc. Your mother is relying on your brother to ensure that he abides by all these regulations but, should he fail to do so, the herdkeeper, ie your mother, will be the person held accountable by the Department.

Consequently, I would suggest that your mother notify the DVO immediately of the situation and ask that her herd number be restricted until she comes to some sort of arrangement with your brother – be it that she transfers her herd number to him if she no longer requires it, or alternatively that he applies for a new one.