Gippsland Ports Committee of Management Inc v Rijnhart

[2015] VCC 715

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL DIVISON
GENERAL LIST

Case No. CI-15-00600

GIPPSLAND PORTS COMMITTEE OF MANAGEMENT INC	Plaintiff
v.
HENK RIJNHART	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2015
DATE OF JUDGMENT:	1 June 2015 (revised 2 June 2015)
CASE MAY BE CITED AS:	Gippsland Ports Committee of Management Inc v. Rijnhart
MEDIUM NEUTRAL CITATION:	[2015] VCC 715

REASONS FOR JUDGMENT

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Catchwords:             Disposal of vessel – Directions to remove the vessel not complied with – Vessel “unseaworthy” – Mooring fees unpaid – Orders made for disposal of the vessel – Australian Consumer Law and Fair Trading Act 2012 (Vic) – Port Management (Local Ports) Regulations 2004 (Vic) – Marine Safety Act 2010 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Rajadurai	Ambrose Rajadurai & Associates
For the Defendant	Mr H. Rijnhart in person

HIS HONOUR:

1Mr Henk Rijnhart owns a vessel “Pinjara” which has for many years been moored on the Gippsland Lakes. In July 2012, he failed to renew the mooring agreement with the plaintiff, Gipplsand Ports Committee of Management Inc. Since that time, the parties have been in dispute in relation to what should happen with the vessel.

2The present application was brought by originating motion on 5 February 2015 pursuant to Part 4.2 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) or alternatively Regulation 325 of the Port Management (Local Ports) Regulations 2004 (Vic) seeking an order for the disposal of the vessel. The principal dispute between the parties concerns the authority of the plaintiff, and its harbour master, to have the vessel removed from its mooring, and whether it can take steps to dispose of the vessel.

3I am satisfied with the following matters:

a.Mr Rijnhart is the owner of the vessel;

b.the vessel was moored in a regulated mooring area within the Port of Gippsland Lakes;

c.after July 2012, when he failed to renew the agreement to moor the vessel, Mr Rijnhart had no authority to continue to moor the vessel where it was;

d.at that time, the vessel was not seaworthy. I make this finding notwithstanding the submission by Mr Rijnhart that there is a distinction between “seaworthy” and “lakeworthy”, which he says is more relevant as a result of the vessel being moored within the Gippsland Lakes;

e.Directions were given by the harbour master in writing for Mr Rijnhart to remove the vessel as follows:

i.on 22 November 2012 pursuant to the Marine Safety Act 2010 (Vic);

ii.on 22 January 2013, pursuant to section 237 of the Marine Safety Act 2010 (Vic) or, alternatively, pursuant to regulation 209 of the Port Services (Local Ports) Regulations 2004;

iii.on 1 October 2013 pursuant to section 232 of the Marine Safety Act 2010.

f.There was a failure by Mr Rijnhart to comply with any of these directions;

g.I consider that, although each direction purported to be given pursuant to the Marine Safety Act 2010, that the directions were equally capable of having been given pursuant to the powers under regulation 324 of the Port Management (Local Ports) Regulations 2004;

h.pursuant to the exercise of its powers of management in respect of the Port and the moorings, the plaintiff and the harbour master were entitled to move the vessel from its mooring to another location;

i.following this action, Mr Rijnhart was requested to take steps to move his vessel and to make payment of the sums that were outstanding in respect of the mooring of the vessel at the original location. Mr Rijnhart refused to comply with these requests.

4   By reason of these matters, I consider that the applicant is entitled to dispose of the vessel. There is some dispute as to the value of the vessel. It is suggested by the applicant that the vessel has no value in its present condition. There is a document prepared by a Mr Bury who inspected the vessel on 4 February 2013, that states the vessel may have a value of up to $10,000.

5   I consider, in the circumstances, that it is appropriate the plaintiff should dispose of the vessel as if it were “medium value” goods within the meaning of the Australian Consumer Law and Fair Trading Act 2012. If the vessel were disposed of for valuable consideration, I consider that the applicant would be entitled to deduct from the sale price, the costs and expenses of the sale and the appropriate charges in respect of the mooring, and that any balance be remitted to Mr Rijnhart.

6   When the matter was called on for hearing this morning, Mr Rijnhart indicated that minutes of proposed orders prepared by the plaintiff were essentially in a form which he considered appropriate, apart from certain matters which he thought might be resolved between the parties. The application was stood down for some time to permit further discussions to take place between the parties. The matter did not resolve.

7   I consider, in circumstances where Mr Rijnhart has been acting upon the mistaken belief that the plaintiff and the harbour masters have not been acting within their statutory powers, that there should be a further opportunity for Mr Rijnhart to discuss resolution of the matter with the plaintiff, before his vessel is offered for sale in accordance with the orders I propose to make.

8   The orders I make are as follows:

1. The plaintiff is authorised to dispose of the vessel, “Pinjara”, as if it were medium value uncollected goods pursuant to part 4.2 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) and to deduct from any proceeds of sale, all reasonable costs of and incidental to the sale and any outstanding mooring fees and the costs of the originating motion. If the vessel cannot be sold in accordance with this order, it may be disposed of by way of destruction.

2. The defendant, Mr Henk Rijnhart, must pay the plaintiff’s costs of the proceeding commenced by originating motion including any reserved costs and the costs of the hearing today to be assessed on the standard basis by the Costs Court in default of agreement.

3. Execution upon the order made in paragraph 1 is stayed until 1 August 2015.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 1 June 2015 (and revised on 2 June 2015).

Dated: 2 June 2015

Olivia Bramwell    

Associate to His Honour Judge Anderson