DREAMBOAT Sales, Brokerage and Charters Pty Ltd v Anthony and Sons Pty Ltd - [2009] WADC 132

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DREAMBOAT SALES, BROKERAGE & CHARTERS PTY LTD -v- ANTHONY & SONS PTY LTD [2009] WADC 132

CORAM: SWEENEY DCJ

HEARD: 25-27 SEPTEMBER 2007, 9-10 JUNE 2008 & 19 JUNE 2008

DELIVERED : 28 AUGUST 2009

FILE NO/S: CIV 415 of 2004

BETWEEN: DREAMBOAT SALES, BROKERAGE & CHARTERS PTY LTD (ACN 065 478 695)
Plaintiff
AND
ANTHONY & SONS PTY LTD (ACN 009 144 861)
Defendant

Catchwords:

Agency - Unpaid commission - Variation implied by conduct

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr D C Leask
Defendant: Mr S G Leslie

Solicitors:

Plaintiff: Leask & Co
Defendant: Talbot Olivier

Case(s) referred to in judgment(s):

Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) [2008] WASC 239
Blackpool & Fylde Aero Ltd v Blackpool Borough Council [1990] 3 All ER 25
Commissioner of Taxation of the Commonwealth of Australia v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 172 ALR 346
Commonwealth of Australia v Crothall Hospital Services (Aust ) Ltd (1981) 36 ALR 567
Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264
Global Network Services Pty Ltd v Legion Telecall Pty Ltd [1999] NSWSC 1090
Jones v Dunkel (1959) 101 CLR 298
Marist Brothers Community Incorporated v Shire of Harvey (1994) 14 WAR 69
Nationwide Produce (Holdings) Pty Ltd (in liq) v Linknarf Ltd (in liq) [2005] FCAFC 129
Tekmat Pty Ltd v Dosto Pty Ltd (1990) 102 FLR 240

SWEENEY DCJ:

Introduction and key issues

The plaintiff carries on the business of boat broker, acting as an agent on behalf of owners and prospective purchasers of vessels. Mr Chris Mews is an employee.
The defendant company carries on business as Oceanic Cruises – a business running a ferry operation to Rottnest – and its associated company, West Boat Builders Pty Ltd ("West Boat Builders") builds and sells boats. Mr Antonio Di Latte is a director of both. All the dealings between the parties took place between Mr Mews and Mr Di Latte.
In about 2000, West Boat Builders built a 34.7 metre mono hull passenger ferry called the "Jet Raider". From early 2001, Mr Mews marketed the boat and continued to do so until, around 3 October 2003, West Boat Builders sold the boat to Kim Xia Marine Co Ltd through an agent, Ms Lynn Cheung. Within that time frame, on 18 June 2002, the defendant granted the plaintiff an exclusive agency to sell that vessel in return for commission.
The plaintiff claims that it is entitled, pursuant to the written agency agreement, to commission on that sale, the purchaser having been introduced to the vessel by the plaintiff and its sub-agents. The plaintiff claims that this same purchaser was introduced to the vessel through its agent Captain Hur and a New Zealand broker Mr Stephen Young, who acted as a go-between and established contact with Mr Mews. The plaintiff's claim is that, following extensive negotiations involving these three brokers, the same prospective purchaser they had been dealing with then entered into a contract to purchase the boat through Ms Cheung. The defendant denies that the plaintiff introduced the purchaser.
From the manner in which the trial was conducted before me, this factual issue comes down to whether the plaintiff can prove that the man Mr Mews and his sub-agents dealt with, a Mr Yang, is the same man as Mr Young, who Ms Cheung dealt with. Nothing really turns upon which precise corporate entity signed the contract to purchase the boat. A company can only be introduced to a vessel through its human representatives or agents therefore, even if Mr Yang were only the agent for the ultimate purchaser, the plaintiff would still have introduced the purchaser to the boat through Mr Yang if he is the same gentleman who negotiated the purchase through Ms Cheung. When I refer to the purchaser in this judgment therefore, I refer to the human face of that purchaser, rather than the company.
There are two key issues for me to determine. The first is whether the ultimate purchaser of the Jet Raider was the same purchaser who Captain Hur, Mr Young and Mr Mews dealt with and whether, therefore, the plaintiff introduced the purchaser to the boat. Failure to prove that fact is fatal to the plaintiff's claim.
The second key issue is whether, assuming the purchaser was the same man, the plaintiff has any entitlement to commission arising out of the sale of the boat. The written agency agreement had, on its face, expired by the time the boat was sold. The plaintiff's argument depends upon my finding that the written agency agreement was, by implication, "continued" up to and including the date of the sale. Failure to prove that fact is fatal to the plaintiff's claim.
Should the plaintiff succeed on those two issues, there is a third: whether the plaintiff was authorised, pursuant to the written agency agreement, to work through sub‑agents.
Many of the facts in this case are uncontroversial and are largely sourced in the documents discovered by both parties. Three witnesses gave evidence – Mr Chris Mews for the plaintiff, Mr Stephen Young, the New Zealand broker and Mr Di Latte for the defendant. Mr Mews testified before me in September 2007, following which Mr Young commenced his evidence and, the trial having been adjourned part‑heard, Mr Young completed his evidence in June 2008, when Mr Di Latte also testified. Each of the witnesses' memories had clearly been affected by the passage of time, the relevant events having occurred in 2001 to late 2003. For that reason, much reliance was placed on the contents of the numerous emails and the occasional facsimile transmission that passed between the witnesses and others.

Period prior to the written agency agreement

It is common ground that the Jet Raider was constructed in about 2000 and was one of several boats constructed by West Boat Builders and available for purchase. Though the boat was constructed by West Boat Builders, rather than the defendant company, for ease of reference and given the connection between the two entities, I will refer to the Jet Raider as being the defendant's boat.
In early 2001, Mr Di Latte thought he had successfully sold the boat, however the purchaser reneged on the deal and lost its large deposit. The boat was then back on the market.
Mr Mews and Mr Di Latte had known each other for some years and had a positive business relationship. The plaintiff, through Mr Mews, had advertised several of the defendant's boats for sale over the years in "Trade‑A‑Boat", a marine magazine with circulation in Australia, New Zealand and Asia. With only one exception, this was without any written agency agreement in place. The defendant also marketed its own boats.
Prior to the written agency agreement, Mr Mews received several inquiries in relation to the Jet Raider, none of which bore fruit. Consistent with the evidence given by both Mr Mews and Mr Di Latte, the understanding between both men was that if Mr Mews secured a serious prospective purchaser, he would approach Mr Di Latte and negotiate the commission payable to him on the sale. This understanding extended to any boat Mr Mews marketed on behalf of the defendant.
A standard rate of commission was 5 per cent, however that varied from as little as 2 per cent to as much as 10 per cent. For example, during this pre‑agency agreement period, Mr Mews wrote to a Mr Leonard Chandra confirming that, in the event Mr Chandra introduced a buyer for not less than $3 million, the plaintiff would pay him a sales commission of $250,000. That represents a commission of 8.3 per cent, without making any allowance for commission payable to the plaintiff. Nothing came of that offer.

The written agency agreement

On 18 June 2002, the parties entered into a written agency agreement (Exhibit 14). There was some minor conflict in the evidence as to who had approached whom in this regard, but nothing turns on that. A standard form agency agreement from the Ship & Yacht Brokers Institute of Western Australia (Inc) was utilised for the purpose.
Pursuant to the agreement, the defendant appointed the plaintiff its agent to sell the Jet Raider on the terms set out in the schedule and agreed to pay the plaintiff's commission set at 5 per cent. The agency was an exclusive agency of 90 days duration from 18 June 2002. Pursuant to cl 4, the plaintiff gained the sole right to negotiate for the sale of the vessel and, should the defendant have sold the vessel independently of the plaintiff, then the defendant was to pay the plaintiff "liquidated damages in an amount of the agent's commission".
Clause 7 provided:
"7.Remuneration of agent
The Agent's commission is at the rate or rates specified in (v) of the Schedule. The commission is to be paid by the Vendor to the Agent as follows:
(a)as soon as the Vendor enters into an enforceable contract and the contract becomes unconditional NOTWITHSTANDING that, for
(b)in the case of exclusive agency, upon a legally enforceable contract for the sale of the Vessel being entered into by the Vendor within the period of the exclusive agency whether or not such contract is effected or entered into as a result of or in connection with an introduction of the Purchaser to the Vessel by the Agent, and
(c)the Vendor entering into a legally enforceable contract to sell the Vessel at whatever price and on whatever conditions the Vendor may accept within six (6) months of the expiration of the agency if the purchaser was introduced to the Vessel by the agent during the time of the agency."
Clause 9 of the contract provided:
"9.Deemed introductions
For the purpose of 7(c) above a purchaser will be deemed to have been introduced by the Agent to the Vendor, if the Agent is involved, at any time prior to the sale or a legally enforceable contract for the sale of the Vessel being entered into, in discussion or negotiation with the purchaser in relation to the sale of the Vessel, notwithstanding the purchaser may have had previous dealings with the Vendor or another agent."
Finally, cl 6 provided:
"6.Term of agency
If the appointment is of an exclusive agency, the terms (sic term) of the agency is the term specified in (iv) of the Schedule and thereafter, the Agent will continue as a non‑exclusive agent for six months or until the Vendor in writing rewokes (sic revokes) the appointment of the Agent. If the appointment is of a non‑exclusive agency, then the term is the period specified in (iv) of the schedule and thereafter, the Agent shall continue as Agent on the same conditions until the Vendor in writing revokes this appointment."
The plaintiff's initial pleadings asserted that cl 6 had the effect that, following the period of the exclusive agency, the agency continued on a non‑exclusive basis for a minimum of six months and thereafter indefinitely, until revoked. This was the plaintiff's position until 6 December 2006, when the matter was first scheduled for trial before me. On that date, however, counsel for the plaintiff conceded the strength of submissions filed on behalf of the defendant as to the proper construction of cl 6 and sought, and was granted, an adjournment of the trial in order to consider his position and amend the statement of claim.
The defendant's contention was that the proper construction of cl 6 was that, following the 90 days of the exclusive agency, the plaintiff would continue as a non‑exclusive agent for either six months, or until its agency was revoked in writing, whichever of those events occurred first. That construction must be correct and the concession made by counsel for the plaintiff was properly made.
The contract is not well drafted and counsel for the plaintiff may well have been influenced in his initial understanding of cl 6 by the term of agency expressed for non‑exclusive agents, which continues until revoked in writing. There is a clear distinction, however, between the two different types of agency and the terms of the contract are considerably more favourable to the exclusive agent and correspondingly more onerous upon the defendant in terms of his obligation to pay commission.
It emerged clearly in the evidence given by Mr Mews and Mr Di Latte that neither had familiarised himself with the terms of the contract. Mr Mews candidly said that he was "hopeless with paperwork" and appears to have paid no attention to the various time frames specified in the contract. He does not appear to have altered his behaviour in relation to marketing the vessel in any way throughout those time periods. He made no overtures to Mr Di Latte when the end date for the agency loomed.
Mr Stephen Young, the New Zealand broker, said that he discussed commission with Mr Mews at the very beginning when he spoke to him about sharing commission on selling the boat and believed this to be around the end of October 2002. He said Mr Mews happily gave him the details of the owner "because he had a sole agency, so nobody can go behind his back." By the time of that discussion, the 90 days exclusive agency period had already expired.
Mr Di Latte, for his part, gave evidence that he considered the entire contract to be at an end after 90 days, which is plainly incorrect.
I mention this evidence because the various parties' conduct may well be explained by their erroneous individual understandings of the contractual position. In construing the contract, however, the Court must look to the objective intention of the parties as evidenced by the contract, rather than their subjective understanding.
Construing this contract objectively then – and this is now common ground – the plaintiff was the defendant's exclusive agent for the sale of the Jet Raider for a period of 90 days, commencing 18 June 2002 and expiring on 16 September 2002. Pursuant to cl 7 if, during the 90 day exclusive agency period, the defendant entered into a legally enforceable contract for the sale of the boat, the plaintiff was entitled to his commission by way of liquidated damages, whether or not he had effected the sale or introduced the purchaser to the vessel.
Thereafter, the plaintiff continued as the defendant's non‑exclusive agent for six months, the defendant not having revoked the agency agreement in writing prior to that time. That six month period expired on 16 March 2003.
During the non‑exclusive period, the plaintiff would be entitled to his commission should the defendant enter into a legally enforceable contract to sell the vessel and "the purchaser was introduced to the vessel by the agent during the time of the agency". It is common ground that the "time of the agency" includes the six month non‑exclusive agency period.
Thereafter, for a period of six months following the expiration of the non-exclusive period, the plaintiff would be entitled to his commission should the defendant enter into a legally enforceable contract to sell the vessel and "the purchaser was introduced to the vessel by the agent during the time of the agency". It is common ground that this further six month period, described by counsel as the period of the "trailing commission," expired on 16 September 2003.
The ultimate contract for the sale of this vessel was entered into on or about 3 October 2003 and therefore outside the six month period of the trailing commission.
The plaintiff pleads, however, that the defendant, by its dealings with the plaintiff, "continued the agency" on the same terms to October 2003, save that the plaintiff was a non‑exclusive agent, the term of the agency was to continue indefinitely until it was terminated by either party or until the boat was sold and the rate of commission was varied, first increased and then decreased.
It is apparent from the numerous emails before the Court, that from October 2002 right up to the sale of the Jet Raider in October 2003, Mr Mews and Mr Young worked towards negotiating a deal for the sale of the Jet Raider. Each considered there to be a real prospect that the deal would finally eventuate, though each expressed frustration at times at what seemed to them to be difficult behaviour on both sides of the negotiations. The evidence at trial included a significant amount of detail about the progress of those negotiations, but at this point it is sufficient to say that the prospective purchaser requested costings on a number of potential alterations to the boat, a number of prior approvals were necessary to the deal and the parties failed to reach agreement on price.
Ultimately, in the midst of their continuing efforts to secure the deal, Mr Mews and Mr Young saw the sale slip through their fingers, as Mr Di Latte negotiated the sale of the vessel through Ms Cheung. Each felt that they had been denied their rightful commission.

Did the plaintiff introduce the purchaser to the boat?

This involves two questions, the main issue being whether the plaintiff has proved, on the balance of probabilities, that the ultimate purchaser of the Jet Raider was the same purchaser that it was dealing with through Mr Young, the New Zealand boat broker and Captain Hur, the Chinese broker.

(a) A side issue

A secondary issue arose, largely through cross‑examination by the defendant, as to whether, in any event, the plaintiff had truly introduced that purchaser to the boat, or whether the purchaser's initial dealings had been with another broker, either Mr Guido Russo or some other agent.
I will deal with this side issue first, as it can be quickly disposed of. There is a snippet of evidence before the Court which suggests that the party Mr Young was dealing with (through the broker Captain Hur) had earlier been quoted a price on the Jet Raider in US dollars by another agent. This is contained in an email received by Mr Young on 1 August 2003, which he forwarded on to Mr Mews. By inference, the author of the email was Captain Hur. It said the purchasers were not prepared to pay more than $US1.2 million and indicated:
"They definitely won't budge from this price. They were quoted this price approximately 12 months ago from another agent. Of course this is when the US dollar was stronger."
Leaving to one side the fact that this is hearsay and that the defendant objected to any such evidence being relied upon by the plaintiff as proof of the truth of the contents, cl 9 of the written agency agreement, reproduced in full earlier in this judgment, renders it immaterial that the purchaser might have had some earlier dealing with another agent.
There was also some suggestion raised in cross‑examination that this price of $US1.2 million may have been linked to an earlier approach, in December 2002, from Mr Russo to Mr Mews, attempting to negotiate a sale of the boat to "a company nominated by Seatran Group of Thailand". Mr Russo's client seemed possessed of information that the lowest possible purchase price was $US1.2 million and wished to put in a lower offer, subject to inspecting the vessel at Fremantle.
Of this particular offer, Mr Young said that he was aware that Mr Russo, a broker employed by Andersons in England and a good friend of his, was trying to do a sale with Seatran Group "which was a customer of mine as well". Mr Young, however, denied that Mr Russo was in any way involved with the potential purchase of the Jet Raider through Captain Hur to Mr Yang and his company and drew a distinction between that purchaser and the Seatran Group. Mr Young said the Seatran Group ran two ferries and were in the travel business. Mr Mews candidly stated that he did not know whether Mr Russo had introduced the purchaser in Taiwan and asked rhetorically how he could have such knowledge.
There is no evidence before the Court to indicate that Seatran is in any way connected to the purchaser of the Jet Raider. In fact there is evidence to the contrary. On 28 February 2003, Mr Mews emailed Mr Young stating:
"Steve, we will have to move very quickly with a conditional offer, as Guido has another client from Asia who he has introduced to Jet Raider and this client wants to inspect the ship during the third week of March. This client has already made an offer but nothing has resulted from it at this point. I do need to make sure that we handle this in an ethical way with Guido as he has been very good to deal with."

I return then to the main question of fact, namely whether Mr Young's potential purchaser is the same man who purchased the Jet Raider through Ms Cheung.

(b) Absent witnesses

There are three potential witnesses who were notable by their absence in this trial. The first is the purchaser himself, Ms Cheung's client Mr Young (not the New Zealand broker, Mr Young). The second is Ms Cheung. These are the two people who could have proved, one way or another, whether the human face behind the ultimate purchaser company is the same man who dealt with Messrs Mews and Young.
The plaintiff had no dealings with Ms Cheung and it was natural, in the circumstances of this case, for the defendant to call her as a witness, given that the discovered documents do contain circumstantial evidence which suggests the purchaser was the same party introduced through the plaintiff.
Mr Di Latte testified that he made efforts to have Ms Cheung testify. He said that, in the lead up to the first scheduled trial date in June 2006, he had instructed his solicitor to meet with Ms Cheung and see what was suitable for her, but that he does not think any such meeting occurred as his solicitor never mentioned it to him.
He said in relation to the second scheduled trial, he had tried to contact Ms Cheung a number of times and had left a number of messages on her phone, but said that, when one telephones Ms Cheung, one listens to a message in Chinese, leaves a message in English and she never rings back. He said over a twelve to eighteen month period, he received no contact from her. He understood from her consultant that she often travels within China.
There was no suggestion from Mr Di Latte that he had ever sent a letter to her outlining the position or explaining the importance of his receiving word from her. It was something of an explanation, however, whereas no explanation was given for the failure to call the purchaser. Identifying that person should not have been too difficult, given that the evidence is that Mr Di Latte met him both in Perth and Hong Kong and was in possession of the company name.
I found this evidence in relation to Ms Cheung somewhat thin. Mr Di Latte managed to negotiate a deal worth a substantial amount of money through this same agent, yet over 18 months was unable to establish contact, though he was in contact, it would seem, with her consultant.
It was natural for the defendant to call the purchaser as a witness to contradict the suggestion that he had been introduced to the boat by the plaintiff. Arguably, however, it was just as natural to expect the plaintiff to call that gentleman to prove that that he had. The defendant may have had the better means to track down the purchaser, having met him and trained the boat crew in Hong Kong and having signed a contract with him. The plaintiff, on the other hand, certainly had the business card for the man it says was the ultimate purchaser. Both parties should have been able to contact him. Neither party gave any explanation for failing to call him.
The third obvious witness who was not called was Captain Hur, the broker who represented the potential purchaser and approached the New Zealand broker Mr Young. It was natural to expect the plaintiff to call this witness who was the third broker in the deal which did not eventuate. Mr Young described him as a personal friend and there would seem to be no reason he could not have been contacted. No explanation was given for his absence.
The defendant, relying upon Jones v Dunkel (1959) 101 CLR 298, invites me to draw an inference against the plaintiff that its failure to call Captain Hur was because his evidence was not expected to assist the plaintiff. The principles upon which such an inference might be drawn were summarised by Owen J in Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) [2008] WASC 239 at [1001] ‑ [1022] and I gratefully adopt that summary. His Honour favoured the application of the principle in a "commonsense" and "realistic" way, based upon the individual circumstances of the case.
It is not inevitable that Captain Hur could have given direct evidence as whether his client was the same as the ultimate purchaser. There is no direct evidence that he had any role to play in the ultimate purchase of the boat. I am prepared to find on the balance of probabilities, however, that he could have given evidence casting light on this issue. For reasons which I will mention below, there is some connection between Captain Hur and Ms Cheung, because it would appear each is connected to Taiwan Shipping in some capacity.
In addition, while much of the correspondence from Captain Hur contains hearsay evidence, I am, for the purposes of considering whether to draw a Jones v Dunkel (supra) inference against the plaintiff, entitled to consider such evidence, because it is the material which the plaintiff had access to in deciding whether or not to call Captain Hur. Its relevance here goes to the plaintiff's state of mind.
On 23 September 2003, after it was discovered by all concerned that Mr Di Latte was dealing with Ms Cheung, Captain Hur emailed Mr Stephen Young, suggesting a strategy as to how Ms Cheung could be the middle man and all parties might still get commission. It is clear from that email and particularly the remark: "We're not clear if the lady is directly dealing with owner or thru Freedom Marine, for what the lady told the buyer they are shipyard consultant … Do you think Chris could check," that Captain Hur was not then fully informed about the deal, but was dealing with the same client as Ms Cheung. In that same email, his attitude was:
"We are also caught in a cross‑fire, we can't offend the buyer by telling them about the consequences, for they will think that we're only trying to have this deal. So what we could do is wait and see."
In a series of further emails between Mr Stephen Young, Mr Mews and Captain Hur in the few days prior to the sale of the boat, Captain Hur explained that Ms Cheung is a Chinese Australian, is the lady friend of the buyer and had met the buyer in Taiwan. He explained that the buyer requested her to negotiate for him too. It is apparent from other emails that, by then, Captain Hur was well aware of the price being negotiated through Ms Cheung. Mr Mews emailed Mr Young on 7 October 2003, days after the sale, lamenting Mr Di Latte's conduct in dealing with another agent, but also stating that Mr Di Latte had informed him that he understood Ms Cheung "was covering Taiships for their commission". Mr Young testified that Captain Hur went quiet around this time and ignored his emails.
On the strength of those emails, it is readily apparent that Captain Hur could have given evidence about the identity of his client and the identity of the person dealing with Ms Cheung. Some of it may have been hearsay. Whether Captain Hur was given some commission by Ms Cheung, or not, is unknown, but I do not conclude from that that he would have been in the defendant's camp, or given evidence which was not candid for some other reason. He was, after all, Mr Young's friend, which might have disposed him towards the plaintiff's side.
I am satisfied Captain Hur could have given evidence which was relevant and probative. I am satisfied he could have been contacted for the purposes of giving evidence.
I am not prepared, however, to draw a Jones v Dunkel type inference against the plaintiff. Firstly, in relation to all three of these missing witnesses, I consider I am entitled, when applying the principle in a commonsense and realistic manner, to have regard to the logistical difficulties and the likely cost involved in securing the taking of evidence from a witness resident in China or Taiwan, wherever these witnesses happen to be. While I considered Mr Di Latte's evidence about not establishing contact with Ms Cheung to be thin, that is not to say that he could have secured her as a witness had he made more effort to establish contact and those same issues apply to Captain Hur.
Secondly and most importantly, the inference I am invited to draw flies in the face of the emails from Captain Hur. It would be quite unjust to infer from the plaintiff's failure to call Captain Hur that his evidence would not have assisted its case, when all the information before the Court suggests the opposite to be true. Had he testified consistent with his emails, he would be expected to say that his client was the person dealing with Ms Cheung. If he did receive commission from Ms Cheung, that would still be consistent with that scenario. And I am even less inclined to draw such an inference given that the defendant also failed to call two obvious witnesses.
My refusal to draw such an inference does not mean, however, that the absence of those witnesses has not left a meaningful gap in the evidence before the Court. The emails from Captain Hur are hearsay and are not before the Court for the truth of their contents. Mr Di Latte denies meeting the potential purchaser in the company of Mr Mews. Neither Mr Mews nor Mr Young can give direct evidence that the potential purchaser they introduced to the Jet Raider is the representative or agent of Kim Xia Marine Co Ltd who purchased the boat through Ms Cheung. The plaintiff's case on this critical issue depends upon my drawing an inference to that effect, on the balance of probabilities.

(c) Should the Court infer that the ultimate purchaser is the same man who dealt with Ms Cheung?

I turn now to the evidence on this issue.
On 23 October 2002, Mr Young received an email from Captain Hur of Taiwan Ship Broker Co Ltd, indicating that he had a buyer interested in the Jet Raider and wishing to confirm the gross registered tonnage of the vessel before proceeding further. Captain Hur's email address was [email protected].
Mr Young had previously dealt with Captain Hur in a different transaction. Mr Young negotiated the sale of the "Harbour Eagle," which was sold on 28 June 2002. He represented the vendor, but also introduced the buyer, Kim Zia Shipping Co Ltd of Taiwan, to the boat. That company ran a ferry operation with about four different branches in Asia, Hong Kong, Thailand and Malaysia. He said he met and dealt with the owner and chairman of that company, a Mr Yung. He said the name was spelt a few times differently to him - mainly it was Y‑u‑n‑g, but sometimes they also spelt it Y‑o‑u‑n‑g. Captain Hur in several emails referred to his client as Mr Yong.
Mr Stephen Young said he had been given a business card by this man, but was unable to say whether the business card before the Court (Exhibit 102) was the same card. He did say, however, that the gentleman he was describing and had met was the same man described on that business card. The business card is for a Mr Su‑Yuan Yang, described as chairman and "member of National Assembly ROC". A fax number of (082) 329‑985 is provided. The correct spelling of his name then is Y‑a‑n‑g. To avoid confusion between Mr Young and this gentleman, I will refer to him as Mr Yang.
Mr Young said that, in relation to the sale of the Harbour Eagle, he also dealt with a Mr Rick Wong and Captain Hur. He described Mr Wong as the operations manager in the company and said he knew quite a bit about operating a fast ferry. Captain Hur was a broker for Taiwan Shipping and was introduced to him as a very good friend of Mr Yang.
Mr Young recalled Captain Hur's email to him of 23 October 2002 as the first positive indication of Mr Yang's interest in the Jet Raider. This clearly involved an assumption on Mr Young's part, based on his previous dealings with the Captain and Mr Yang. The first email from Captain Hur does not in fact identify the potential purchaser.
On 30 October 2002, Mr Young emailed Mr Mews:
"Hi Chris, I spoke to you some time ago regards the Jet Raider. Could you please provide me with the gross tonnage and the registered tonnage of this vessel?"
This is the first documentary evidence of Mr Young contacting Mr Mews concerning the Jet Raider. It implies some previous conversation. Mr Mews replied on 1 November 2002, providing information. From this point on, Mr Young explained, the purchaser always went through him, then he contacted Mr Mews and then Mr Mews dealt with the owner, Mr Di Latte.
Mr Young said he then approached Mr Mews "at the beginning" and asked "if I could share the commission and he said, yes, we've got a signed sole agency to sell the vessel". He said that conversation occurred on the telephone before he got too far down the track with selling the vessel, because he was not going to sell it for nothing.
The emails exchanged between Mr Young and Mr Mews indicate that Mr Young's buyers were intending to fly to Perth, arriving 27 February and flying back on 1 March 2003. The arrangement reached was that Mr Mews would collect them at the airport on Thursday, where one of them would be holding a sign with the name Rick Wong.
Mr Mews testified that this scheduled visit did indeed occur and his recollection is supported and supplemented by a series of emails. According to his email to Mr Young of 25 February 2003 (Exhibit 26), he made arrangements with Mr Di Latte for the purchasers to inspect the Jet Raider alongside her berth on Thursday at a time to be arranged and then, on Friday, for the party to be on board at 8.50 am for a scheduled trip to Rottnest Island and return. The party was then to board another vessel, the "Sea Cat", at 11 am for a scheduled trip to Rottnest Island and return. Two further emails sent that day (Exhibit 30) indicate that Mr Wong's secretary made direct contact with Mr Mews, requesting certain information be available at the time of viewing. Mr Mews then emailed Mr Wong directly, signing off: "See you at the airport on Thursday".
On 28 February 2003 at 4.27pm, Mr Mews emailed Mr Young (Exhibit 32) indicating "Our visitors have just left on an early flight". Mr Mews wrote:
"We had a very good two days with them and they are very keen. I feel confident that there is a deal here, so long as we can agree on price/conditions etc. Thursday we spent doing inspections and today a sea trial, on a scheduled ferry run with pax on board. The customers want various changes made to Jet Raider to suit their trade and the owner (who is also the builder) can do all this work as an extra charge (cost) but wants it to be separate from the contract price for the ferry."
Mr Mews testified that he picked the party up at the airport on the Thursday as planned and was given business cards on introduction at the airport, or soon after. Three cards were in evidence before the Court (Exhibit 102). One was from Mr Su‑Yuan Yang, with the fax number (082) 329‑985. This is the man Mr Young has described, by reference to this card, as being the same person he had met and dealt with in connection with the sale of the Harbour Eagle.
When asked whether Captain Hur was part of the party, Mr Mews said "I think he was but I don't have his card here". He said one card is missing from the cards before the Court.
Mr Mews said he was introduced to the buyer, Mr Yang, two people who did not speak very good English and also Captain Hur. I note that Mr Young described Mr Yang as someone who did not speak very good English. Mr Mews initially agreed he had lost Captain Hur's business card, but then said he did not know that he actually received a card from him and that there was one person he did not take a card from, for some reason. Mr Mews then became quite confused as to whether it was Captain Hur who did not give him a card, or Mr Wong, thinking on balance that it was Mr Wong. He said there were four Chinese gentlemen in all when they inspected the Jet Raider.
The emails clearly indicate that Mr Wong was one of the party and indeed the arrangement was that, when Mr Mews collected them at the airport, they would be holding a placard bearing Mr Wong's name so that Mr Mews could identify them. Mr Mews had emailed Mr Wong direct, both speaking English.
Because there is no translation of the Asian language on the business cards, it is quite impossible to tell whether one of those cards is Mr Wong's and whether one is Captain Hur's. The salient point is that Mr Yang was one of the men and I find, given the content of the emails, so was Mr Wong.
Mr Mews testified that, of the people he met, the person he understood to be the purchaser was Mr Su‑Yuan Yang. Any reader of the trial transcript will find this person's name to be spelt differently almost every time it has been typed by the transcriber, but Mr Mews, when giving this evidence, was looking at the business card he had been given and identifying the owner of that card as the person he dealt with.
The two other business cards are predominantly written in an Asian language. One bears a logo of a world globe and a large K, a logo which is also on Mr Yang's business card, and the same fax number as appears on Mr Yang's card. It provides an email address: "[email protected]". The third business card has a different logo of the letter K in a triangle and provides the same email address as the second business card. I infer that the letter K stands for "King" in "King Xia".
Mr Young's evidence included an assumption that, when Captain Hur made the first approach to him by email on 23 October 2002, he was representing Mr Yang, who Mr Young had met in relation to the Harbour Eagle deal. Mr Mews' evidence, coupled with Mr Young's identification of the Mr Yang he had met as being the same person named in the business card given to Mr Mews, proves him correct in that assumption. His assumption is supported by the presence also of Mr Rick Wong, connected to both transactions.
Further, while it is to be noted that the purchaser of the Harbour Eagle was King Zia Shipping Co Ltd of Taiwan, whereas the purchaser of the Jet Raider was King Xia Marine Co Ltd of Taiwan (Exhibit 89), the business cards of two members of the potential purchaser's party provide the email address for "King Xia" and one of those gentlemen shares the same fax number as Mr Yang. The inference is irresistible that Mr Yang is closely connected to both King Xia Marine Co Ltd of Taiwan and King Zia Shipping Co Ltd of Taiwan.
Mr Mews said the group were in Fremantle for about two days. He said he took the buyer's party, including Mr Yang, on board the Jet Raider at its berth in the Fishing Boat Harbour, where he introduced them to Mr Di Latte and they inspected the vessel and then conducted a sea trial to Rottnest and back. According to the emails, which are contemporaneous notes of these events, that run to Rottnest occurred on the Friday.
Mr Mews testified that the purchasers and he and Mr Di Latte all had lunch together at Point Walter and watched one of Mr Di Latte's ferries come past and they also had dinner together in Fremantle one evening, but did not specify which evening or whether the lunch and dinner were on the one day.
This evidence was hotly contested. Its significance from the plaintiff's point of view is that the evidence, if accepted, tends to prove that Mr Di Latte met and socialised with the potential purchaser and should therefore be in a position to know whether he is the same man as the eventual purchaser whom he met through Ms Cheung. Mr Di Latte is the only witness called who could give that direct evidence, if Mr Mews' assertion is correct.
Handwritten notes of Mr Mews' expenses for the Thursday, 27 February 2003 only were tendered (Exhibit 39). These were handwritten notes and photocopied receipts described as "expenses CJ Mews" notes. They included, Mr Mews said, buying dinner for everyone including Mr Di Latte. They were compiled on 11 March 2003. There are no documents relating to Friday, 28 February 2003 which, according to the email, is the day the visitors left on an early flight.
There is a lunch receipt for Pepe's Café, which relates to four meals only and some bread. Pepe's Café is described on the EFTPOS document as being at 1 Norfolk Street, Fremantle. If Mr Mews' recollection is correct that there were four Chinese gentlemen, then, given that Mr Mews' receipts indicate that he paid for this meal, one of the Chinese gentlemen did not attend or, if he did, did not eat a meal, which is possible, but unlikely.

There is a dinner receipt for Joe's Fish Shack and an EFTPOS receipt for the same meal, which indicates on its face that five guests were present at the table. Mr Mews testified that the party and Mr Di Latte had dinner one evening in Fremantle. That can only have been this dinner, if the purchasers flew home on the Friday prior to the 4.27 pm email. Joe's Fish Shack is described as being at 42 Mews Road, Fremantle. Given again, however, that Mr Mews paid for this meal and was present, then one of the four Chinese gentlemen did not attend this meal, or Mr Di Latte was not present, or someone did not eat.
The other possibility of course is that Mr Mews is wrong in his recollection that there were four Chinese gentlemen. He received only three business cards and made a point of keeping them. He was not positive that Captain Hur was present at all. He initially thought one card was missing because he had not kept it, then thought he may not have been given it. He initially thought he did not receive Captain Hur's card, then thought he did not receive Mr Wong's card. He has given no evidence that one of these four men consistently did not eat, or failed to join them for lunch and then dinner.
His evidence about who he met at the airport and took a card from was certainly vague, whereas he seemed to have a clear recollection of having lunch at Point Walter, describing it vividly. He became indignant when it was suggested he was making it up. His evidence implied that the lunch occurred after the sea trial. He said that Point Walter was a mere 10 minutes from the sea trial by car and they had fish and chips and wine and beer. When it was put to Mr Mews that Mr Di Latte denied being present either during lunch or dinner, Mr Mews replied:
"I find it incredible. We stood there at the lunch and watched one of his ferries come past and we all walked over to the crest of the hill to – Mr Di Latte pointed it out to the buyers. … Mr Di Latte said 'Let's go and have lunch at Point Walter' because I think it coincided with the schedule of one of these little ferries coming past that restaurant."
Mr Mews agreed that he may have drawn an assumption that that was Mr Di Latte's motivation, because when they had lunch and saw the ferry going past he put two and two together.
If there were only ever three Chinese gentlemen, then the receipt to Pepe's Café is consistent with Mr Mews sharing lunch with them and the receipt for Joe's Fish Shack supports his assertion that they were joined by Mr Di Latte as the fifth guest. If there were four, that receipt supports Mr Di Latte's evidence that he was not present.
Clearly the alleged lunch at Point Walter can only have been on the Friday, given that Thursday lunch was in Fremantle. The original arrangement as described in the emails (Exhibit 27) was for a scheduled trip to Rottnest Island and return commencing Friday 8.50 am, followed by a scheduled trip to Rottnest Island and return on board the Sea Cat at Friday at 11 am. I infer from those time frames that it is entirely possible to conduct two trips to Rottnest and also have time for lunch and still board a flight that afternoon. I will return to this issue shortly.
Mr Di Latte's evidence was that, after some sporadic contact over a few years, including obtaining details of the Jet Raider, Ms Lynn Cheung contacted him at the beginning of April 2003. I note that, by then, the plaintiff's six months non‑exclusive agency period had expired.
Ms Cheung said she had a buyer and asked Mr Di Latte for written confirmation that he would pay her commission if she was able to sell the vessel. She described her client to him as a gentleman in China by the name of Mr Young (not to be confused with Mr Stephen Young, the New Zealand broker).
This followed a period during which the promised naval architect's report had been several times delayed, frustrating and disappointing the purchaser, as demonstrated in the email exchange between Mr Young and Mr Mews on 26 March 2003 (Exhibit 42).
On 14 April 2003, Mr Di Latte met with Ms Cheung and subsequently sent her a facsimile (Exhibit 53):
"After our meeting today, we have the pleasure of offering you a 5% commission of the gross sale price for the successful sale of the abovementioned vessel (the Jet Raider) to Mr Young in Taiwan. I believe Mr Young is your personal friend and he is interested in purchasing the abovementioned vessel."
By subsequent letter of 23 April 2003, faxed that day, Mr Di Latte provided a guarantee in relation to the machinery on board and guaranteed that he would personally travel to the destination of the delivery of the vessel and train Mr Young's crew for a period of one week at his expense. Significantly, the letter states:
"An itemised list, quoted by West Boat Builders, which was supplied to the booker (sic broker) Steve Young, in New Zealand on 8 March 2003 for the amount of AUD 230,000 will be reduced to AUD 130,000 if the sale of the existing vessel, the Jet Raider, is successful."
The letter indicated that for all of the items listed in the letter the vessel was for sale at a price of AUD$2.388 million.
Mr Di Latte said that Ms Cheung and her client inspected the vessel at Fremantle around the end of April or May 2003. He was asked whether he met her client and replied:
"I think I did. I can't recall exactly, but I can recall at one stage that Lynn Cheung and a client went to a sea trial, yes. At that point of time I think the vessel every so often used to operate to Rottnest Island when the other vessel sometime had to be – do maintenance to it."
He said there were not many sea trials in relation to the Jet Raider, unfortunately, but he did recall the sea trial with Ms Cheung because she could speak English, whereas her client Mr Young could not speak English at all. He said he had never seen Mr Young before meeting him with Ms Cheung, but he saw him a couple of times after that when he returned to Perth and also when Mr Di Latte went to Hong Kong in connection with the sale of the Jet Raider.
He said he had no recollection of meeting that same man in Mr Mews' company in February 2003 and thinks he would have recalled him, had he done so. Initially Mr Di Latte said:
"I can't recall that, but there was some sea trial taking place, but I cannot recall if it was with Mr Mews, by a prospective buyer, or by another person – other people. That was a long time ago."
In cross‑examination, however, Mr Di Latte denied that there was any sea trial of the Jet Raider in February 2003. He said he definitely was not present when Mr Mews and a group of people had a meal at the Point Walter café. He denied being the person who suggested that the meal take place there.
He said Mr Mews probably did mention something to him about potential purchasers coming to Fremantle to inspect the boat, but he was never involved and, had it been mentioned to him, "it would have gone past me, so to speak, without even a second thought". He said at that time he was trying to sell about eight boats and so he did not really take much notice unless someone came along with a signed offer.
Surprisingly, he denied that a potential purchaser's willingness to travel from overseas to inspect the boat suggested significant interest on their part in the vessel. When asked whether he would treat such an inquiry more seriously than a simple telephone enquiry, given that the person was prepared to come from overseas, Mr Di Latte said "I wouldn't treat it any more serious than any other inquiry, no".
I did not find Mr Di Latte's evidence on this point to be credible, particularly given that this boat had already been the subject of a failed contract of sale previously and that he was keen to sell it.
A letter dated 19 September 2003, being a facsimile header on West Boat Builders' letterhead addressed to "Taiwan Shipping, Attention Lynn Cheung" at fax number 08‑9382‑4931 confirmed a "second amended quote" for the Jet Raider. It concluded "Yours sincerely, Tony Di Latte, Managing Director".
There are two copies of the documents before the Court. The first (Exhibit 72) shows only that typed fax number for Ms Cheung, on its face a local Perth number. The second (Exhibit 73) bears a handwritten addition of another fax number 0015‑8862‑2502‑7090, written next to Taiwan Shipping. It is also stamped "faxed" and, directly underneath that, in handwriting that is clearly the same as the added fax number, appears: "To Lynn: 2.09 PM 19/9/03" and, underneath that: "To Taiwan Shipping: 2.11 PM 19/9/03".
This letter was ultimately received by both Mr Mews and Mr Young. Both were unclear on precisely how they received it. Mr Mews felt that he had received it by "mistake", but was very vague about that. This letter is what alerted him to the possibility that Mr Di Latte was dealing with another agent. While he was rather confused by cross‑examination on this point, I understood him to be trying to convey that it was a mistake on the part of Mr Di Latte that he had been allowed by some means to see this. He clearly considered Mr Di Latte to have been caught out.
The point of real significance is that, from the face of the document, it was always intended by the author, Mr Di Latte, that it be sent to Ms Cheung at a local number and it was understood that she was at Taiwan Shipping. Mr Di Latte agreed as much in his evidence in relation to an earlier document and said Ms Cheung probably asked him to fax it to her there. The "faxed" stamp and handwritten notations indicate that the document was first sent to Ms Cheung at 2.09 pm and then to Taiwan Shipping two minutes later.
The most logical explanation for the second copy is that, having faxed the document to Ms Cheung at the local number, the same person then added the handwritten fax number for Taiwan Shipping, faxed the document there as well, then stamped the letter as having been faxed to both within two minutes of each other. The obvious inference is that it was Mr Di Latte's secretary who did it.
Mr Di Latte was unwilling to concede that a letter written on his own letterhead and addressed to Ms Lynn Cheung at Taiwan Shipping bore his own secretary's notation that the letter had been sent by fax both to Ms Cheung and then to Taiwan Shipping. He insisted that no practice existed in his office of noting the time at which a fax was sent, or stamping the documents as having been faxed.
This evidence is partly contradicted by a facsimile header on his letterhead to Ms Cheung dated 15 May 2003 (Exhibit 57) stamped "faxed". It is totally contradicted by another facsimile header on his letterhead (Exhibit 56) to Ms Cheung which bears the stamp "Faxed 23/4/03 " and another (Exhibit 80) to Ms Cheung which bears both the notation "Faxed 25/9/03 5.33 pm" and the note "Tony, this was faxed to Lynn 25/9/03". Again, I find his evidence incredible.
This second copy of the document bears, in the form of the usual details generated by the process of faxing a document, the print "From: Taiship – phone no 02‑2502‑7090 – Sep 22, 2003 01:41 PM". That indicates that someone at Taiship, having received this document, faxed it to someone else. That phone number is the same as the handwritten fax number for Taiwan Shipping noted on the document, minus the international codes. On the strength of that, I draw the inference that "Taiship", which is Captain Hur's email address and which is an obvious abbreviation for Taiwan Ship Broker Co Ltd, is the same entity or a closely connected entity to "Taiwan Shipping," to which the letter was addressed for the attention of Ms Cheung.
This second copy of the document also bears some handwriting which is not entirely legible: "To Steve, (illeg) this is what we received fr. Ms Cheung". I cannot tell whether that means "from Ms Cheung" or "for Ms Cheung".
There is no clear evidence as to whose handwriting that is, but it appears to me to be clearly the same handwriting which appears on a remittance receipt from the Land Bank of Taiwan (Exhibit 38) identified by Mr Young in his evidence as being that of Captain Hur. If that is correct, the content is hearsay, but the fact of authorship of the handwritten note is not.
The same document bears a further set of details generated by having been faxed: "From: Pacific Ferries Ltd – D – Phone no: +64‑9‑303‑1742 – Sep 22, 2003 07: 0 (illeg)". Pacific Ferries Ltd is the business associated with Mr Young, whose contact at Taiwan Shipping was Captain Hur.
Mr Young's evidence, after some confusion, was that he received this document from Captain Hur. Of course he did. I draw the obvious inference from all of the above facts that Captain Hur received this document which had been faxed to Taiwan Shipping, then faxed it on to Mr Young.
Who sent it on to Mr Mews does not matter. It came to his attention. In all likelihood, Mr Young sent it to him.
The only aspect which is puzzling – and was the subject of cross‑examination with no light being thrown on the subject – is that a copy already bearing the office stamp indicating it had been faxed to both Ms Cheung and Taiwan Shipping should then be the same document apparently received by Taiwan Shipping and faxed on to Mr Young. Normally one would expect the "faxed" stamp to be placed on the document only after it had been faxed. Normally one would expect only the defendant to have that version of the document, whereas both copies of this document were in the plaintiff's bundle of discovered documents.
In the end I am unable to resolve this mystery, but it is a mundane point. Perhaps the secretary faxed it and stamped it, then suspected the fax had not been sent successfully and faxed it to Taiwan Shipping again. Perhaps there is some other explanation. But without solving that mystery, logic and commonsense and the practice which did exist within Mr Di Latte's office leads me to infer that his office sent this fax to both Ms Cheung and Taiwan Shipping. Mr Di Latte would only have done so because Ms Cheung represented to him that she, or her client, was connected to Taiwan Shipping.
This is confirmed by correspondence from Mr Di Latte's lawyer, who was attempting at short notice to prepare the contract of sale for the Jet Raider, requesting him to provide further details of "Taiwan Shipping" as the name of the purchaser to be inserted in the contract for sale. When Mr Di Latte was questioned about providing that name to his lawyer, he appeared to disavow all responsibility and knowledge, suggesting that the name had simply been provided by Ms Cheung to his lawyers, an explanation which is hardly credible.
He was unable to give any explanation for a document discovered in his own list of documents and described as a fax header, the significance of which is that, firstly, it is a handwritten document containing the same facsimile number as that referred to in two of the business cards given to Mr Mews and, secondly, it is from Yang Su‑Yaan, which bears very close similarity to the name Su‑Yuan Yang, the gentlemen both Mr Mews and Mr Stephen Young have nominated as the purchaser they introduced to the boat. In fact the style of type on the business card is such that I am not totally confident that name is Su‑Yuan Yang and not Su‑Yaan Yang.
Mr Di Latte's puzzlement at the document may be understandable, given that it appears to contain no more than certain contact details, but his demeanour when it was pointed out that the fax was apparently addressed to "Mrs Tony" was gleeful and gave me the impression he considered he had just scored a significant point against the plaintiff.
Overall, he did not impress me as a witness who was doing his best to recall the incidents and tell the truth, whether the truth suited his case or not. In fact this little snippet of evidence is significant and is a compelling part of the circumstantial case that the ultimate purchaser, through a corporate entity, was indeed Mr Su‑YuanYang, sometimes called Mr Yong and Mr Young.
The first copy of the same document does not bear any stamp indicating it had been faxed to Ms Cheung and Taiwan Shipping. It bears a facsimile machine generated detail indicating it was sent by fax from Oceanic Cruises, Mr Di Latte's business. This first copy was also sent by fax from Taiship on 2 October 2003 and bears a similar handwritten note (in a different place on the document) "Buyer received this fax fr. Ms Cheung".
I find the most logical explanation for this is that Mr Di Latte's secretary faxed this to Ms Cheung and she or someone else then forwarded it to Taiwan Shipping, not necessarily by facsimile transmission. Captain Hur at Taiwan Shipping then forwarded it on. Meanwhile, Mr Di Latte's secretary also faxed the same letter to Taiwan Shipping. So Taiwan Shipping received this letter twice. The only reason I dwell on these minutiae is that the witnesses were cross‑examined on these details. The significant point which emerges is the connection between Ms Cheung and Captain Hur.
Finally, I return to the letter of 23 April 2003, faxed that day, by which Mr Di Latte guaranteed Ms Cheung that he would train her client's crew and the reference in that letter to "the itemised list, quoted by West Boat Builders, which was supplied to the booker (sic broker) Steve Young, in New Zealand on 8 March 2003".
The inference is irresistible that this is a reference to an email initially emanating from Mr Young on 5 March 2003 containing the prospective buyer's list of requested variations to the Jet Raider, sent to Mr Mews, then returned to him by Mr Mews with handwritten notations provided by Mr Di Latte costing those items at $230,000. Mr Di Latte's reference to this itemised list could only be of relevance or assistance to a person who had access to that information through Mr Young.
Combining the connection between Ms Cheung and Captain Hur through Taiwan Shipping, the connection between Mr Di Latte and Mr Su‑Yuan Yang established by that facsimile header to "Mrs Tony" and the connection between Ms Cheung's client and Mr Stephen Young, I find the inference irresistible that Ms Cheung's client Mr Young was Captain Hur's client Mr Yang and that, through Mr Stephen Young, the plaintiff did introduce the purchaser to the boat during the period of the agency agreement.
Further, I find that Mr Di Latte became aware of that fact. Mentioning the itemised list sent to Mr Stephen Young could have been of no assistance or relevance to Ms Cheung and her client, unless Mr Di Latte expected the client already had the information referred to, because Mr Di Latte knew that Mr Young had been dealing with the same client. He could have known that through three sources: Mr Mews, Ms Cheung or the purchaser. In cross‑examination, however, he was asked about his knowledge of Mr Young in April 2003 and replied: "None. Simply that he was some sub‑broker in New Zealand that Chris Mews was dealing with". He knew of Mr Young, then, through Mr Mews.
Mr Di Latte actually denied knowing that Mr Mews had provided that itemised list to Mr Young and said Mr Mews had simply wanted that information for someone in New Zealand. When asked about the inclusion of the specific reference in his letter to the list having been provided to Mr Steve Young on 8 March 2003, Mr Di Latte replied:
"Again, like I said, that was just a matter of speaking. I would have dictated something like that to the girl in the office, and the girl would just use that phrase."
He was not tackled further. His evidence was evasive and unconvincing. It is possible he did not know, at the time the itemised list was sent, the name of the broker to whom it was sent. But he must have drawn the connection by the time he wrote this letter, even if it was Ms Cheung who identified which broker that list had been sent to. He must have recalled costing these variations at $230,000 for Mr Mews.
Overall, I was not impressed with Mr Di Latte's evidence generally. He appeared to be unwilling to make any concession which might assist the plaintiff's case and, even allowing for the passage of time which did impact upon all of the witnesses, his memory at times appeared to be conveniently lost. He was evasive and his demeanour was cagey and, as I have mentioned, at times gleeful when he thought the plaintiff had hit a hurdle.

I find that Mr Di Latte agreed to pay Mr Mews 1.5 per cent commission because he acknowledged Mr Mews had put in considerable effort towards negotiating the deal and knew that those efforts had probably contributed along the way towards the ultimate sale through Ms Cheung. Though I was unimpressed by Mr Di Latte as a witness, I am still not satisfied that he agreed to pay that commission on any other basis than simply a goodwill gesture, because he was embarrassed that Mr Mews' efforts would go unrewarded and he hoped to continue his previous good relationship with Mr Mews. He had more boats to sell in the future.
The plaintiff did seek during the trial to further amend its case to enable me, should I find Mr Di Latte only agreed to pay the plaintiff 1.5 per cent commission, to award that sum to the plaintiff. I refused permission to amend the pleadings yet again at such a late stage. I would not, however, have awarded that sum to the plaintiff, because I consider Mr Di Latte's agreement was a mere goodwill gesture, not supported by consideration nor attended by an intention to create legal relations between the parties.
Following the discussion about reducing the commission, Mr Mews received an email on 24 September 2003 from Captain Hur, asking for the width of the main deck passenger cabin. Mr Mews contacted Mr Di Latte to obtain the figure and responded to Captain Hur that day. The eighth dealing relied upon is Mr Di Latte's provision of that measurement to Mr Mews.
Mr Di Latte testified that he would have provided the net width of the main deck passenger cabin to any agent who enquired. I have no reason to doubt that evidence. It was a mundane request for information and I can see nothing in Mr Di Latte's supplying of the information which would lead me to conclude that he must have been agreeing to the extension of the onerous terms of the written agency agreement.
Finally, I come to the quotation arranged by Mr Mews for the shipment of the vessel to Kaohsiung, which is the ninth and last dealing relied upon by the plaintiff. The freight quotation dated 7 October 2003 and sent from Allways Shipping Pty Ltd to Mr Mews was provided to Mr Di Latte by Mr Mews that day.
Mr Mews testified that Mr Di Latte asked him get a freight quote and he complied with the request because "I thought I was still acting in a capacity as an agent for Mr Di Latte". He said he was not given any reason to believe he was not acting as his agent but agreed that, apart from the discussions about commission, there had been no other discussions about the existence or otherwise of an agency.
However, Mr Mews also said in cross‑examination that Mr Di Latte told him "They think she has sold it and could I help him get a shipping quote". That is consistent with Mr Mews' email of 7 October 2003 to Mr Young in which he said:
"The owner rang me yesterday and said he 'thinks he has sold Jet Raider' and could I help him to get a shipping quote. I got a shipping quote months ago, so I can just update that with a shipping co. today."
This dealing occurred, then, after Mr Mews was well aware that Mr Di Latte was dealing with another agent, after Mr Di Latte had offered to pay the plaintiff 1.5 per cent commission and after Mr Di Latte had balked at paying any commission to Mr Young.
Mr Di Latte denied requesting this quotation. I accept Mr Mews' evidence however that he did. It is implausible that Mr Mews could have imagined such a request and he has referred to it in an email sent that same day. I consider him to have been an honest witness and though his recall of events has been adversely affected by the passage of time, the email supports his memory.
I am not satisfied, however, that there is anything in Mr Di Latte requesting Mr Mews to arrange a quotation which should lead me to imply that Mr Di Latte agreed to continue the terms of the written agency agreement, particularly given that this occurred after it was apparent he was dealing with Ms Cheung. It was bold of him to request such a favour. He had, however, in the days prior, offered to pay Mr Mews 1.5 per cent commission purely as a goodwill gesture to preserve their good relationship. In those circumstances, his request for a favour is more understandable. Given Mr Mews' comment in his email to Mr Young, there was not a great deal of effort required to obtain the quote, one having already been obtained months earlier. I should add that I would not consider this amounted to consideration for the promise to pay commission. That is the last of the dealings.

Conclusion

Mr Mews' continued efforts to negotiate this deal on behalf of Mr Di Latte were on the basis that he understood he was acting as Mr Di Latte's agent. He was not wrong in his understanding. Had Mr Mews succeeded in selling the boat, by securing a legally enforceable contract from the purchaser, this Court would have had little difficulty in finding that a relationship of agency did exist between the parties, in which the parties had impliedly, by conduct, agreed that Mr Mews would receive commission. An understanding clearly existed between the parties to that effect, prior to any written agency agreement. Both Mr Mews and Mr Di Latte gave consistent evidence to that effect.
The plaintiff did not plead its case, however, based on any such contract by implication. Nor did the plaintiff secure the sale, which was necessary for it to claim commission pursuant to that understanding. Again, both Mr Mews and Mr Di Latte gave consistent evidence on that point.
The plaintiff's case is based solely on an argument that the terms of the written agency agreement were continued by conduct. Consequently the plaintiff's written submissions to the effect that the plaintiff was the "effective cause" of the sale are somewhat misconceived. Pursuant to the written agency agreement, the plaintiff was entitled to its commission if it introduced the purchaser to the boat during the term of the agency, within the extended meaning provided by the definition of "deemed introduction" in cl 9 of the agreement. If that agreement continued past its expiry date as contended, it is not necessary that the plaintiff prove it was the "effective cause" of the sale. Clearly Mr Mews introduced the purchaser to the boat within the agency period.
It is by no means clear, in fact, that the plaintiff was the effective cause of the sale. Though the information provided to the purchaser through Mr Mews would have been part of the information on which the purchaser based his decision to purchase the boat, the emails before the Court also show increasing frustration in the dealings between the parties and their agents, particularly between Captain Hur and Mr Young. It is unnecessary to go into detail, but they show ongoing disagreement between the two agents as to the best approach to the purchase. Delays were also experienced in the provision of information to the purchaser. These issues and perhaps other personal factors may explain why the purchaser began negotiating through Ms Cheung who, it seems, was personally known to him.
Returning to the plaintiff's main contention, I can see nothing in any individual pleaded dealing, or in the combined effect of those dealings, from which it can be implied that Mr Di Latte agreed that, if he sold the boat through another agent to a purchaser first introduced to the boat by the plaintiff, he would be bound to pay double commission. There was no express agreement to that effect and, I find, no implied agreement either.
On this second key issue then, the plaintiff has not proved that the written agency agreement was continued and, consequently, I find that it has not proved its entitlement to any commission on the sale. It is no doubt frustrating that so much time was spent on the deal and ultimately the same purchaser went elsewhere to negotiate the final deal, but it is the unhappy lot of an agent to spend time and energy on a deal which does not in the end bear fruit, just as it is the happy lot of an agent to earn far more for his time than any hourly rate could justify should he secure the sale.
Whether Mr Di Latte's dealings with Mr Mews were what they should have been, given their business relationship, is not for me to judge. The question before the Court is not one of ethics or courtesy, but of contract.
Because of the findings I have made on this second key issue, it is not necessary for me to determine whether the plaintiff was entitled to work through sub‑agents.
The plaintiff's claim is dismissed.