| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HURLEY -v- SALMERI & ANOR [2003] WADC 270 CORAM : COMMISSIONER GREAVES HEARD : 17 OCTOBER 2003 DELIVERED : 4 DECEMBER 2003 FILE NO/S : CIV 2866 of 2000 BETWEEN : MICHAEL HURLEY Plaintiff
AND
STEVE SALMERI
First Defendant
MAKAIRA II PTY LTD
Second Defendant
Catchwords: Procedure - Appeal from Deputy Registrar - Application for leave to amend statement of claim - Proposed amendment embarrassing for uncertainty – Turns on its own facts
Legislation: Nil
(Page 2)
Result:
Appeal dismissed Representation:
Counsel:
Plaintiff : Mr C P Shanahan
First Defendant : Mr J A Thompson
Second Defendant : Mr J A Thompson
Solicitors:
Plaintiff : Butcher Paull & Calder
First Defendant : Mullins Handcock
Second Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 COMMISSIONER GREAVES: This is an appeal from the decision of the learned Deputy Registrar delivered on 2 September 2003 whereby he refused the plaintiff's application to amend its statement of claim in accordance with the further minute of consolidated statement of claim filed. In that minute, the plaintiff pleads (par 1.3) he was at all material times the owner of a yacht known as the Millennium Deux. The plaintiff pleads (par 2.2 of the minute) the first defendant was a director of the second defendant, which owned and operated a vessel known as the Blue Horizon (par 2.4). The plaintiff pleads (par 3.5) the second defendant provided reflotation and towing services to vessels which had run aground.
2 In par 5 of the minute, the plaintiff pleads that in or about September 1998 the Millennium Deux ran aground on Serrurier Island. The plaintiff pleads (par 5A) the plaintiff engaged the second defendant to refloat the Millennium Deux and to tow it to Exmouth. The terms of the contract are pleaded in pars 6, 7 and 8 of the minute. At pars 9 to 12 inclusive of the minute, the plaintiff then pleads: "9. In purported performance of its obligations under the contract the Second Defendant acting by the deployment of the First Defendant and a single crew on the Blue Horizon:— 9.1 attended upon the Millennium Deux on Serrurier Island on or about 5 October 1998 and took exclusive possession of the vessel from the Plaintiff and the Plaintiff surrendered exclusive possession of the vessel to the First Defendant on behalf of the Second Defendant for the purpose of the Second Defendant's performance of the contract ('the delivery'); 9.2 refloated the Millennium Deux, and 9.3 commenced and continued to tow the Millennium Deux to Exmouth until it sank. 9A. Further, or in the alternative, by:— 9A.1 the delivery in performance of the contract;
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9A.2 the Second Defendant's exclusive possession of the vessel through the First Defendant pursuant to the delivery in performance of the contract; 9A.3 the Second Defendant's voluntary assumption of the exclusive possession of the vessel through the First Defendant pursuant to the delivery and in performance of the contract;
PARTICULARS
A. The Plaintiff surrendered control of the Millennium Deux to the First Defendant when the First Defendant attended Serrurier Island on 5 October 1998 pursuant to the contract; B. The Plaintiff understood at all material times that the First Defendant on behalf of the Second Defendant having arrived on Serrurier Island had complete control of the re-flotation and tow of the Millennium Deux pursuant to the contract and as such had exclusive possession of the vessel; C. From the arrival of the First Defendant on Serrurier Island on 5 October 1998 the Plaintiff and the crew of the Millennium Deux acted on the Second Defendant's direction through the First Defendant. 9A.4 the Second Defendant's voluntary assumption of the responsibility for the safety of the vessel through the First Defendant pursuant to the contract; and 9A.5 the Second Defendant's obligation to return the vessel pursuant to the contract, the Plaintiff bailed the vessel to the Second Defendant pursuant to the contract ('the bailment').
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10. In breach of the bailment the Second Defendant failed to deliver the Millennium Deux to Exmouth and as a result the Plaintiff has suffered loss and damage:— 10.1 the replacement cost of the Millennium Deux; 10.2 personal property of the Plaintiff lost from the Millennium Deux, and 10.3 wasted expenses.
PARTICULARS
A. Replacement Cost $260,000.00 B. Personal property lost:— (i) Angle grinders x 2 $179.28 (ii) Bench grinder $189.57 (iii) Ryobi handsaw $121.50 (iv) Saw blades x 6 $ 30.00 (v) Tape measure $ 18.87 (vi) Orbital sander $119.00 (vii) Makita Electrical
drill $150.00 (viii) Tool boxes x 2 $ 80.00 (ix) Vice $ 69.00 (x) Extension leads x 6 $105.00 (xi) Spanner & Socket
set $850.00 (xii) Cassette radio $499.00 (xiii) Clothes $2,000.00 (xiv) Plates and cutlery $ 79.95
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11. In the alternative to the breach of bailment pleaded at paragraph 10 above, the Second Defendant breached the contract in that:-
PARTICULARS OF BREACH
11.1 The second Defendant did not exercise all due skill and care in relation to the refloating and towage of the Millennium Deux in permitting the First Defendant to attempt the performance of the contract in the manner pleaded in paragraphs 11.4 to 11.6 below; 11.2 the staff deployed by the Second Defendant to refloat the Millennium Deux were not suitably qualified and were unable to do so efficiently and safely, which is to be inferred from the First Defendant's attempts to perform the contract in the manner pleaded in paragraphs 11.4 to 11.6 below; 11.3 the staff so deployed were not adequately equipped to perform the contract in that they did not have a portable motor pump which could have been utilised to keep the Millennium Deux afloat once it had begun to take water and its pumps failed;
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11.4 the First Defendant acting for the Second Defendant pursuant to the contract in the process of refloating the Millennium Deux occasioned some damage to the diaphragm of the leg of the motor on the yacht causing it to take water.
PARTICULARS OF DAMAGE TO MOTOR
The diaphragm of the leg of the motor on the Millennium Deux was damaged in the course of the First Defendant refloating the yacht on Serrurier Island and as a result began to take water. 11.5 the First Defendant acting for the Second Defendant pursuant to the contract continued to tow the Millennium Deux despite the lashings holding the tow rope to the bow of the Millennium Deux ('lashing rope') parting on several occasions which lashing rope frayed and parted due to the yacht's movements occasioned by its inoperable rudder in that:— (a) at approximately noon on 5 October 1998 the lashing rope frayed and parted; (b) subsequently at about 1 pm on the same day the same tow rope frayed and parted; (c) shortly after 1 pm and following the fraying and parting of the tow rope pleaded at paragraph (b) the lashing rope frayed and parted again causing the Millennium Deux to take excessive water, and (d) it was the uncontrolled motion of the Millennium Deux that caused the lashing rope to fray and part; 11.6 the First Defendant acting for the Second Defendant pursuant to the contract persisted in attempts to tow the Millennium Deux until it took
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enough water to flood the batteries powering the yacht's pumps in that:— (a) the First Defendant continued to tow the Millennium Deux without an operable rudder despite:— (i) seas of one metre and a ten to fifteen knot south westerly wind ('the prevailing conditions'): (ii) the damage to the yacht's motor occasioned when it was refloated; (iii) the yacht beginning to take water; (iv) the lashing rope parting, and (v) the yacht's batteries being flooded and its pumps failing; (b) the First Defendant failed to make any temporary repair to the rudder of the Millennium Deux; (c) the manner in which the First Defendant sought to tow the Millennium Deux after the last occasion on which the lashing rope parted caused the yacht to go over on its side and take enough sea water to flood the batteries causing the power to the pumps to fail resulting in the ingress of sea water at such a rate that the yacht sank in 60 foot of water at 21º52'937" south and 114º16"679" east; (d) failed to employ sufficient crew in the reflotation and tow, and (e) towed the Millennium Deux at a speed of seven to ten knots that was too fast in all the circumstances and particularly in the prevailing conditions. 12. Further in the alternative, and in breach of the implied terms pleaded at paragraph 7 above and/or the statutory warranties pleaded in paragraph 8 above, the services
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supplied to the Plaintiff by the Second Defendant pursuant to the contract:- 12.1 were not rendered with due care and skill.
PARTICULARS OF BREACH
The Plaintiff repeats paragraph 11.1 to 11.6 herein inclusive. 12.2 were not reasonably fit for that purpose or were of such a nature and quality that they could not reasonably be expected to achieve the Plaintiff's desired result.
PARTICULARS OF BREACH
The Plaintiff repeats paragraph 11.1 to 11.6 herein inclusive." 3 The learned Deputy Registrar refused the plaintiff's application to amend in terms of the minute and the plaintiff appeals from that decision. The application for leave to amend is opposed in relation to pars 9A and 10 of the minute, on the ground they are embarrassing because they fail to make it clear whether the plaintiff relies on alternative causes of action in contract and bailment, with the result that the nature of the alternative pleading in the minute arising out of the same facts is uncertain and the case which the defendants are required to meet is therefore also uncertain. 4 It was for this reason the learned Deputy Registrar refused the application for leave to amend. From the submissions of counsel for the plaintiff, it seems to me likely the plaintiff's intention is to plead that it was an implied term of the contract that the Millennium Deux be bailed to the second defendant. If that is so, I accept the submission of counsel for the defendant that the implied term should be identified and pleaded, and further any implied terms of the contract governing the duties of the second defendant which have been allegedly breached should also be identified and pleaded. 5 For these reasons, the appeal will be dismissed.
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