Non Raceday Inquiry – T Vince

hearingid: 9ff6f140d70395e496f5f3d430cb9932

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non Raceday Inquiry - T Vince

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Decision:

Mr T R Vince has been charged with a breach of Rules 821(1), 1002(1) and 1002(2) of the Rules of Harness Racing in relation to the running of Top Tempo in the Nevele R Caduceus Club Fillies Classic at the Auckland Trotting Club meeting on 9 June 2006.

BETWEEN HARNESS RACING NEW ZEALAND

Informant

AND

TIMOTHY ROBIN VINCE

Defendant

Judicial Committee:   

Mr NO Harris (Chairman)

Mr R Neal

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DECISION

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Mr T R Vince has been charged with a breach of Rules 821(1), 1002(1) and 1002(2) of the Rules of Harness Racing in relation to the running of Top Tempo in the Nevele R Caduceus Club Fillies Classic at the Auckland Trotting Club meeting on 9 June 2006.

The essence of the case for the informant is that Top Tempo, although nominated as a foal for the Caduceus Club Classic (Series 8), was ineligible to be entered in the two year old event, the Nevele R Caduceus Club Fillies Classic, on 9 June 2006, because of a failure to pay two sustaining payments.

In addition to the charge against Mr Vince the informant seeks the disqualification of Top Tempo from the race.

Mr Vince took advice from Mr D H McIlraith who presented two written submissions to the Committee on the defendant's behalf.

The informant was represented by Mr M Branch of Harkness Henry & Co, Solicitors, Hamilton, who also presented written submissions to the Committee.

The parties agreed the statement of facts and consented to this Committee dealing with the matter on the papers.

Top Tempo was one of two runners which raced in the Nevele R Caduceus Club Fillies Classic when allegedly ineligible and under circumstances which prompted an investigation by Harness Racing New Zealand. Mr Carmichael's review of these matters was made available to the Committee to assist its consideration of the charges against Mr Vince.

Top Tempo was foaled on 9 October 2003 and was nominated by her breeders for the Caduceus Club Classic (Series 8). The filly was sold to Mr T Vince at the Australasian Classic Yearling Sale at Auckland on 21 February 2005. The horse was sold with a number of stakes engagements including the Caduceus Club Classic (Series 8). Further sustaining payments for this series were due not later than 31 July 2005 ($112.50) and 31 December 2005 ($56.25). These payments were to be made to the registered office of the Caduceus Club Series Trust Board. We observe at this point that it is accepted no such registered office ever existed, which in Mr McIlraith's submission raised an issue as to the eligibility of all runners on the basis of non compliance with this requirement.

The transfer of ownership papers were sent by the auctioneers to Mr Vince on 29 April 2005. The notice of change of ownership was submitted to Harness Racing New Zealand on 4 July 2005, recording the ownership of Top Tempo in the names of Messrs T Vince, G Rogerson and A McGregor.

The Caduceus Club is an unincorporated club which through a trust, The Caduceus Club Series Trust, has promoted and administered The Caduceus Club Fillies Series for two and three year old fillies since 1998. Trustees are elected by the members of the Caduceus Club with the Auckland Trotting Club entitled to appoint additional trustees. Through an agreement in May 2004 between the Auckland Trotting Club and the Caduceus Club the Caduceus Club Series Trust Board was to administer the nominations and subsequent sustaining payments for Series No. 8. A schedule of horses eligible for each race was to be provided to the Auckland Trotting Club within 7 days after each enrolment, nomination or sustaining payment date. The Auckland Trotting Club in turn agreed to host the race.

Contrary to the agreed understanding between the Caduceus Club and Auckland Trotting Club the latter assumed full responsibility for monitoring, collecting and recording the receipt of the two outstanding sustaining payments.

It is the Committee's view that while well intentioned these changes in the advertised arrangements would not have been known to owners of eligible fillies and they would as result be wholly dependent on the Auckland Trotting Club's systems to ensure they maintained their eligibility status.

Auckland Trotting Club officials in June 2005 posted invoices for payment B, which was the $112.50 due by 31 July 2005, to the registered owners of fillies for which a nomination fee had been paid by 31 July 2004.

In the case of Top Tempo as the transfer of ownership had not been registered the invoice was sent to the vendor Mr M Baker. He advised that he returned it to the Auckland Trotting Club noting that the filly had been sold at the February sales. No further action was taken by the Auckland Trotting Club to follow up this advice.

Sustaining payment C invoices were generated several weeks prior to 31 December 2005 but no invoice was posted to the connections of Top Tempo because of the non-payment of the B payment.

On 10 May 2006 the Auckland Trotting Club faxed a list of all fillies for whom a foal nomination and sustaining payments had been made to trainers in the northern region. The list did not include Top Tempo. But Mr Purdon, the caretaker trainer, at the request of Mr M Purdon nominated Top Tempo for the Nevele R Caduceus Club Fillies Classic on 5 June 2006.

It is accepted by all parties that Mr B and M Purdon and Mr Vince acted with an honest belief that Top Tempo had been nominated and was eligible for the Caduceus Club Classic (Series 8).

It is acknowledged that the Auckland Trotting Club did not check the nominations for the race against the list of fillies faxed to trainers on 10 May 2006. No further checks appear to have been conducted so that the opportunity to rectify the ineligible status before the actual race by intervention from the Club, the Judicial Committee on the day or the Stipendiary Stewards was lost.

Top Tempo finished second in the race and earned gross stake money of $14,883.30. The Auckland Trotting Club has agreed not to seek repayment of this stake. Once made aware of the non-payment of the sustaining payments several weeks after the race Mr Vince immediately tendered the amount to a Caduceus Club Series Trust trustee.

The connections of horses expect and rely on a high level of professionalism, due care and competence from Club officials in the administration of race meetings. Even more so where, as in this case, the race has Group 1 status. If those standards had been observed in this case we are confident that the sustaining payment defects would have been cured within the Rules of Harness Racing and consistent with the industry's practice in relation to entry payments prior to race day. Turning then to the rule which is central to this matter:

Rule 821(1) states

"No horse shall be eligible to run in any race unless it has been duly entered therefor in accordance with these Rules by the person entitled to enter it, and no horse prohibited by these Rules from being entered for any race shall be entered."

Mr McIlraith, for the defendant, put a number of propositions to the Committee with some emphasis on the following:

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1. the race conditions had not been validly approved and that more particularly rule 837 had not been complied with;
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2. the conditions were a nullity;
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3. the obligation to meet the sustaining payments had been discharged through the Auckland Trotting Club's non-compliance with rule 837;
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4. the conditions were amended by the conduct of the Auckland Trotting Club in accepting and permitting Top Tempo's entry into the race; and
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5. the defendant relied on the equitable doctrine of estoppel;
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He traversed other matters and finally submitted that the failure to make the two outstanding sustaining payments was a trivial matter which should be corrected or remedied under rule 835 by this Committee.

Rule 835 states

"Any trivial error or violation of these rules in relation to the entry of horses may be corrected or remedied with the permission of the committee of the club or the Judicial Committee."

Mr Branch for the informant asserted that the non-payment of the two sustaining payments for Top Tempo made the horse ineligible under the conditions of the Nevele R Caduceus Club Fillies Classic. No penalty was sought against Mr Vince however the informant argued for disqualification of Top Tempo from the race. He further advised that Top Tempo has since run second in a Group 1 race and obtained "black type" but that the fourth horse in the Nevele R Caduceus Club Classic, Reality Check, would be denied that status if the placings stand. Mr Branch also responded in his submissions to a number of the arguments put forward by the defendant.

The Committee is appreciative of the very full submissions put to it by counsel but our approach to this matter does not require us to delve deeply into the finer points of those arguments.

The critical eligibility issues for the Nevele R Caduceus Club Fillies Classic in our view are that the horse is a two year old filly and was nominated as a foal for Series 8. Top Tempo met these criteria. Mr Vince, as purchaser would have been aware of the horse's eligibility for the two races in Series 8 plus a number of other stakes engagement described in the Sales Catalogue entry for the horse.

There is some criticism by the informant of Mr Vince for not notifying the transfer of the horse's ownership within the 14 days as required by rule 418. We understand this rule appears to be observed more in the breach where a horse is sold at auction. Where as in this case additional owners were brought in the time taken (10 weeks) to notify the transfer of ownership is not in our view unreasonable.

It is suggested that if this rule had been complied with Mr Vince and the co-owners would have received the invoices for sustaining payment B and avoided the jeopardy now faced.

Auckland Trotting Club officials were, however, put on notice in late June or early July 2005 by the horse's vendor, Mr Baker, that the horse had been sold. This advice if followed up would in all likelihood have revealed Messrs Vince, Rogerson and McGregor as the new owners. Rules 421 and 422(1) while not referred to by counsel are also relevant here. Rule 421 says that in the absence of an agreement to the contrary a horse shall be sold with its engagements and under rule 422(1) the seller, in the case of default by the purchaser, remains liable for the payment of "any other payments due (or thereafter to become due) in respect of the entry of the horse for any race" ? unless the seller and purchaser jointly agree to transfer the engagements and that is approved by the Club concerned (in this case the Auckland Trotting Club).

Sustaining payments fall within the meaning of "any other payments due" in this rule. It is clear from the terms and conditions of the sale of Top Tempo that the horse was sold with its engagements which included the Nevele R Caduceus Club Fillies Classic. No approval by the Auckland Trotting Club of a written transfer of this engagement would appear to exist and therefore the Club was obliged to look to the seller in the event of default by the purchaser for the unpaid sustaining payments B and C before concluding there had been default in the payment. It did not do so.

If it had, Top Tempo's eligibility for the race would not be an issue for it is reasonable to assume the horse's purchasers would have been contacted and paid the invoice.

We have referred earlier to the omissions and errors by officials of the Auckland Trotting Club in their administration of the actual race entries and our view is that their effect was to deny Top Tempo's connections the opportunity to become aware of and remedy the outstanding sustaining payments issue through the customary practices and process.

We believe that the Auckland Trotting Club through its actions took absolute responsibility for ensuring every reasonable opportunity was afforded owners of eligible fillies to meet the sustaining payment obligations. In failing to meet this obligation to the owners of Top Tempo the connections were in our view entitled to assume the horse was eligible to start in the Nevele R Caduceus Club Fillies Classic without further obligations being met.

In the quite extraordinary context of this race and the administrative lapses and shortcomings associated with it we are not satisfied that the failure to meet the sustaining payments is fatal to the eligibility of Top Tempo. In all other respects the horse was properly nominated and entered for the race. The outstanding payments ($168.75) are trivial in the context of the race's status, stake and breeding value to the placed horses.

Trivial errors or violation of the rules relating to the entry of horses may be corrected or remedied by a ruling under 835. We find that in the quite unique and unusual circumstances of this case non payment of the sustaining payments is trivial in nature and under rule 835 we determine that it has been remedied by Mr Vince tendering the outstanding payments to Mr K Crooke, a trustee of the Caduceus Club Trust, on 11 August 2006.

We are unable to find that Mr Vince breached rules 821(1) and 1002(1) and therefore dismiss the information.

Given these findings we find that it is not appropriate to disqualify Top Tempo from the race under rule 1003.

Dated this 9^th day of January 2007

Neville Harris

Chairman

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hearing_type: Old Hearing

Rules: 821.1, 422.1

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