DA.MET (Aust) Pty Ltd v The Ship “Seahorse”
[2012] FCA 752
•12 July 2012
FEDERAL COURT OF AUSTRALIA
DA.MET (Aust) Pty Ltd v The Ship “Seahorse” [2012] FCA 752
Citation: DA.MET (Aust) Pty Ltd v The Ship “Seahorse” [2012] FCA 752 Parties: DA.MET (AUST) PTY LTD (ABN 11 108 061 472) v THE SHIP "SEAHORSE" File number: QUD 218 of 2012 Judge: COLLIER J Date of judgment: 12 July 2012 Catchwords: ADMIRALTY – repair work conducted on ship – refusal of defendant to pay all invoices for work conducted – ship arrested – claim of defendant that plaintiff substituted engine on ship – cross-claim Date of hearing: 12 July 2012 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Plaintiff: Mr G Coveney Solicitor for the Plaintiff: Grasso Searles Romano Lawyers Counsel for the Defendant: The Defendant appeared in person
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 218 of 2012
BETWEEN: DA.MET (AUST) PTY LTD (ABN 11 108 061 472)
PlaintiffAND: THE SHIP "SEAHORSE"
Defendant
JUDGE:
COLLIER J
DATE OF ORDER:
12 JULY 2012
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The defendant pay the plaintiff the sum of $16,084.18 in respect of marine engine service fees payable by the defendant to the plaintiff for services performed by the plaintiff at the request of the defendant.
2.The defendant pay the plaintiff interest at the rate of 10.25% per annum with respect to Invoice Numbers 12471, 12587, 13009, 13015, 13319, 13384 and 14684 for the period from 7 April 2010 until the date of judgment.
3.The defendant pay the plaintiff’s costs, to be taxed if not otherwise agreed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 218 of 2012
BETWEEN: DA.MET (AUST) PTY LTD (ABN 11 108 061 472)
PlaintiffAND: THE SHIP "SEAHORSE"
Defendant
JUDGE:
COLLIER J
DATE:
12 JULY 2012
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Between June 2009 and March 2010 the plaintiff, which operates a marine sales and service business, conducted maintenance and repairs of the ship “Seahorse” (“the ship”) at the request of its owner Mr Clifford Corbett. The plaintiff rendered invoices to the defendant totalling $25,966.31. Of that amount, the defendant has paid $9,882.13. In summary, the plaintiff seeks the balance owing by the defendant, being $16,084.18, in addition to interest and costs.
In its defence the defendant, which does not have legal representation and was represented in Court this morning by Mr Corbett, claimed in summary that:
·it agreed with the plaintiff to undertake work on the defendant’s Volvo boat engine;
·the plaintiff failed to undertake the work agreed to on the engine;
·the plaintiff failed to return the engine to the defendant;
·the plaintiff returned a different engine to the defendant.
The defendant has also filed a cross-claim, in which the defendant claims (in summary):
·It was an implied term of the agreement between the plaintiff and the defendant that the plaintiff would return the defendant’s engine to the defendant after the engine had been serviced.
·The defendant delivered the ship’s engine to the plaintiff for service and repair, however the plaintiff has refused to deliver the engine to the defendant and instead delivered a substitute which the plaintiff has attempted to pass off as the defendant’s engine.
·The defendant has been unable to use the engine in the boat reliably since the service conducted by the plaintiff, and has lost profits.
In my view the claims of the plaintiff are substantiated against the defendant, while the defendant’s cross-claim has no merit. I have formed this view for the reasons I explain below.
Background
In Court this morning, Mr Corbett gave evidence that he has been in the fishing industry for over 40 years. Mr Corbett and the ship are located in Ballina New South Wales, where Mr Corbett uses the ship to fish for crayfish and crustaceans to supply to market.
It is not in dispute that the ship’s engine is of Volvo manufacture, purchased new by Mr Corbett in 2000. The ship itself was purchased by Mr Corbett in around 1990. Mr Corbett explained that the engine was the third engine the ship had had since 1990 – the necessary implication being that the ship had two different engines between 1990 and 2000. The engine delivered by the defendant to the plaintiff was installed in the ship in 2000.
Some time in July 2009 Mr Corbett noticed that the ship’s engine was blowing oil out through a dipstick. He concluded that the engine required a service, and following removal of the engine from the ship he took the engine to the premises of the plaintiff in Brisbane. Mr Corbett deposes that the plaintiff quoted him approximately $10,000 for work required to service and repair the engine.
Later in July 2009 Mr Corbett collected the engine from the plaintiff after the plaintiff informed him that work on it had been completed. Mr Corbett said, however, that when he installed the engine back into the ship:
·The engine was running hot and failing.
·He contacted Mr Peter Bova, the director of the plaintiff, who suggested that Mr Corbett change the impeller in the ship’s pump.
·In early August 2009 the engine began leaking coolant.
·Mr Corbett noticed that the bellhousing and bearing on the back of the motor were noisy and failing. A mechanic employed by the plaintiff travelled to Ballina to assist Mr Corbett.
·On 2 November 2009 the engine leg was sent to the plaintiff for servicing, and Mr Bova informed Mr Corbett that the engine required a new leg.
Mr Corbett gave evidence that because of these issues he had been required to engage the services of a local mechanic in Ballina to assist him, and that he had lost considerable work days over the Christmas period in 2009 as well as other work days throughout 2010, 2011 and 2012.
Mr Corbett gave oral evidence this morning that he was convinced that the engine given to him by the plaintiff was not the engine he had taken to the plaintiff for repair. Mr Corbett’s conviction is based on the following factors:
·The engine provided to him by the plaintiff in July 2009 did not smell like the ship’s engine.
·He is meticulous about making written notes in relation to matters relevant to the ship, including keeping a detailed log book and keeping separate all parts removed from the ship.
·It did not make sense that a relatively new engine pump, being only 6 months old, would require a new impeller.
·The engine was not calibrated to the ship’s dash, which was suspicious.
·The engine’s bellhousing was jammed against the steering column such that it did not appear to fit properly, which was also suspicious.
·He sought and obtained a letter from the New South Wales Department of Transport, Roads and Maritime Services, which letter informed him that the details, in respect of the main engine fitted to the ship, held in the Department’s computer records were as follows:
“Make – Volvo Diesel
Model: VOLVO AQAD 41B
Serial Number: 2204136552”
·His log book record from February 1998 indicates that the serial number of the engine then installed in the ship, which engine preceded the current engine, was 3102184799 (and therefore obviously a different serial number from the number recorded as the “current number” by the Department).
·The serial number on the engine transferred by the plaintiff to the defendant was 2204159168, which Mr Corbett submits is not the correct serial number of the ship’s engine, and again is obviously a different serial number from the number recorded as the “current number” by the Department.
Evidence of Mr Bova
Mr Bova gave oral evidence in Court this morning. So far as is material, Mr Bova’s evidence was (in summary) as follows:
·The unpaid invoices, being the basis of the plaintiff’s claim against the defendant, represented real work undertaken by the plaintiff in relation to the ship.
·Volvo Warranty Centre Owner Registration information obtained by Mr Bova in relation to the ship indicated that Mr Corbett owned an engine installed in a ship at Ballina; that the engine was acquired by him on 23 October 2000; that the serial number of the engine was 2204159168 and that the transmission number of the engine was 3102204091.
·A Job Card of the plaintiff in respect of work performed for Mr Corbett and the vessel “Sea Horse” dated 11 June 2009 recorded the engine serial number as 2204159168.
·“DYNOmite Dynamometer Test Results” recorded by the plaintiff at its Salisbury, Queensland premises in respect of a vessel owned by Mr Corbett described the vessel’s engine as “Engine Make: VOLVO; Engine Model: AD 41 P-A 2204159168”.
·The defendant’s claim that the plaintiff had substituted and transferred to the defendant a different engine from that originally delivered by the defendant to the plaintiff was nonsense.
Findings
I note that in the defence and cross-claim the defendant makes no allegation of inferior work conducted by the plaintiff, or claims any set-off against the amount claimed by the plaintiff in this proceeding. That this is so was clarified by Mr Corbett at the hearing this morning. Mr Corbett’s defence to the plaintiff’s claim and the basis of his cross-claim is, in essence, that the engine delivered to him by the plaintiff is not the engine he delivered to the plaintiff for servicing and repair.
In my view the position propounded by Mr Corbett has no substance. I take this view for the following reasons:
·I do not consider that Mr Corbett is being deliberately untruthful in respect of the position he has taken. However I find Mr Bova’s evidence more credible than Mr Corbett’s evidence. In particular, I am persuaded by Mr Bova’s evidence that there would be no advantage to him or the plaintiff in switching engines and replacing the ship’s engine with another engine. I note in particular that the engine delivered by Mr Corbett to the plaintiff for maintenance and repair was almost 9 years old at the time, and that although on the evidence of Mr Corbett it had outlasted the two previous engines the ship had had, it was by no means new or of such value as to warrant possible consequences flowing from the discovery of unlawful substitution by the plaintiff.
·While I note Mr Corbett’s evidence concerning the difficulties he experienced following reinstallation of the engine into the ship after he had retrieved it from the plaintiff, I am not persuaded on the balance of probabilities that these difficulties indicated that there had been a substitution of the engine by the plaintiff. There was some evidence before the Court in relation to the muddiness of the Ballina berth which could affect the operation of the engine, the age of the engine itself, and the fact that the ship’s pump was at least 6 months old by the time the pump began malfunctioning at the end of 2009. At best, the difficulties experienced by the defendant after July 2009 could potentially have indicated inferior workmanship by the plaintiff in servicing the ship, however this was not pleaded by the defendant.
·Most significantly, the weight of evidence overwhelmingly supports a finding in favour of the plaintiff that the engine delivered by Mr Corbett to the plaintiff for servicing was the same as the engine delivered by the plaintiff to Mr Corbett. In particular:
oThe serial numbers of the engine recorded on the Volvo Warranty Centre Owner Registration card, the plaintiff’s Job Card and the plaintiff’s DYNOmite Dynamometer Test Results all read 2204136552, and therefore match, supporting the position maintained by the plaintiff in respect of the identity of the engine.
oNotwithstanding Mr Corbett’s submission based on the letter provided by the Department as at 9 July 2012, on closer examination of that letter (including its annexed computer printouts) it is clear that the record maintained by the Department of the serial number of the ship’s engine – nominating the engine number as 2204136552 – related to an engine in the ship as at 10 September 1994 and 1 December 1995, which on the evidence of Mr Corbett substantially predated the acquisition of the engine in question.
oFurther I am not persuaded by Mr Corbett’s submission that, in reality, the serial number of the engine in 1998 was in fact 3102184799 (as distinct from 2204136552). Rather, I accept the submission of Mr Coveney that that number was more likely the transmission number of the engine owned by Mr Corbett in 1998 than its serial number. I draw this inference by reference to the Volvo Warranty Centre Owner Registration information before the Court in relation to the current engine, which identifies the “Transmission” number of the current engine as 3102204091, which number is somewhat similar to the number transcribed by Mr Corbett in his logbook in respect of the previous engine. To that extent, I consider it probable that Mr Corbett erred in recording the serial number of the ship’s engine in 1998.
Conclusion
Other than the defendant’s claim that the plaintiff did not return the engine upon which it agreed to conduct maintenance and repair, there is no serious contention advanced by the defendant that amounts claimed by the plaintiff in respect of work undertaken are not properly claimed. In my view the plaintiff is entitled to the relief sought.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 12 July 2012
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