Maclean v Rottnest Island Authority - [2000] WASC 106

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MACLEAN -v- ROTTNEST ISLAND AUTHORITY [2000] WASC 106

CORAM: SCOTT J

HEARD: 27, 30 & 31 MARCH 2000

DELIVERED : 4 MAY 2000

FILE NO/S: CIV 2235 of 1997

BETWEEN: IAN JAMES MACLEAN
Plaintiff
AND
ROTTNEST ISLAND AUTHORITY
Defendant

Catchwords:

Civil trial - Negligent misrepresentation - Verbal and written representations - Telephone conversations - Duty of care owed by defendant - Council aware that plaintiff intended to act upon information provided to him - Representations true in substance and in fact - No cause of action - Misrepresentation in Council letter to plaintiff

Local government regulations - Amendments to the Rottnest Island Regulations 1988 - Plaintiff's position altered as a result of amendments to regulations - No misrepresentation - Defendant's statements accorded with the law

Breach of Fair Trading Act 1987 - Nothing in representations that offended s 10 of the Fair Trading Act 1987 - Defendant's conduct not unconscionable

Estoppel - Not necessary to decide if cause of action established

Damages - Asset built for special purpose - Specialised vessel built by plaintiff - Damages assessed from the time that misrepresentation occurred - Damages discounted for fair wear and tear - Plaintiff enjoyed use of asset for a number of years - Damages discounted for fittings that are saleable - No damages awarded for distress or inconvenience - Turns on own facts

Legislation:

Fair Trading Act 1987, s 9, s 10

Local Government Act
Rottnest Island Authority Act 1987

Rottnest Island Regulations 1988

Result:

Judgment for the plaintiff in first cause of action only
Limited costs awarded

Representation:

Counsel:

Plaintiff: Mr L A Tsaknis
Defendant: Mr K J Martin QC & Mr P P McCann

Solicitors:

Plaintiff: Cockle & Co
Defendant: Phillips Fox

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

Annand and Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165
Carroll v Azolia Pty Ltd [2000] WASC 95
Commonwealth of Australia v The State of Tasmania & Ors (1983) 158 CLR 1
Shaddock v Parramatta City Council (1981) 150 CLR 225
Siddons v Stanley Works (1991) 20 FCR 14
Waltons Stores (Interstate) Ltd v Maher & Anor (1988) 164 CLR 387
Zoneff & Anor v Elcom Credit Union Ltd (1990) ATPR 51,142

Case(s) also cited:

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Marks v GIO Holdings Ltd [1998] HCA 69; (1998) 158 ALR 333
Minister for Immigration and Ethnic Affairs v Kurtovic [1990] 21 FCR 193
Sykes v Reserve Bank of Australia (1998) 88 FCR 511
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
Yates v Boland [1999] HCA 64; (1999) 167 ALR 575

SCOTT J: The plaintiff in this action is now retired and aged 54 years. He has held a mooring at Narrow Neck, towards the western end of Rottnest Island, but on the north side, since 1984. He owned and used two vessels prior to the matters arising in the present action.
In 1989 the plaintiff suffered two minor strokes for which he had surgery and in 1990 he underwent a triple by-pass operation. As a result of his deteriorating health, the plaintiff decided to purchase and live on a houseboat. In October 1991 the plaintiff had the opportunity to purchase a pontoon, upon which he could construct a houseboat. The pontoon had no means of self‑propulsion and was constructed in such a manner that to provide a means of self-propulsion was impracticable. The plaintiff was aware that the pontoon was to be auctioned on 16 October 1991 and so with a view to purchasing the pontoon and turning it into a house-boat, he sent a facsimile to the defendant asking if there were any objections to his mooring a house-boat on Rottnest Island. A copy of the facsimile (document 24 page 36-Defendant's Book of Documents ("DB")) provides:
"Re Mooring NN 086
Please advise of any objections of mooring a house-boat being approximately 10 metres by 8 metres with draft of 2-3 feet on the above mooring."
The plaintiff's evidence was that prior to sending that facsimile he spoke to the Chief Executive Officer of the defendant (Christopher John Back) ("Dr Back") and discussed with him the proposal to permanently moor the non-motorised houseboat at Rottnest. The plaintiff's evidence, which I accept, was that he was told by Dr Back that there were no objections to the proposal which "sounded like a good idea". In the same conversation, Dr Back told the plaintiff that he would need to prepare a plan for sewage disposal, which had to be lodged with the environmental officer of the defendant for approval.
A further facsimile from the plaintiff to Mr P Clash of 18 November 1991 provided a plan for sullage disposal from the house-boat in accordance with the discussion between the plaintiff and Dr Back.
The plaintiff was prudent enough to ask Dr Back to confirm the conversation in writing and by letter of 21 October 1991, Dr Back wrote to the plaintiff confirming the receipt of the facsimile and the conversation on 16 October, (document 28 page 40-DB). In the course of that letter, Dr Back wrote:
"Should you proceed with this venture, you would need to advise the Authority through the Marine Ranger as to how you intend to handle the disposal of waste material, especially sewage from the permanently moored vessel."
The plaintiff's evidence is that, based upon this approval by the defendant, he went ahead and purchased the pontoon, upon which he constructed a house-boat and he upgraded his mooring to make it suitable for the vessel. Although he was unable to produce receipts, the plaintiff's evidence was that he spent the sum of $113,658 in upgrading the mooring and in constructing the houseboat. That figure included the purchase of the pontoon and its delivery. Whilst the plaintiff was unable to produce any receipts for the expenditure involved in the construction of the house-boat, having heard his evidence and cross‑examination there seems no reason to reject his costing.
It is common ground that the houseboat was completed in or about March 1992 and on 23 April 1992 it was towed to Rottnest Island and moored on the plaintiff's mooring in Narrow Neck.
As will be discussed later in these reasons, part of the plaintiff's claim is that he understood from Dr Back that he could keep the vessel ("Le Shed") permanently on that mooring as it was his intention to use the house‑boat as his permanent residence.
After "Le Shed's" arrival at Rottnest in April 1992, it became apparent to the plaintiff that living on the vessel during the winter months was not a practical proposition and consequently after a period of about one-month the vessel was towed back to Fremantle. In subsequent years, the plaintiff had "Le Shed" towed to Rottnest for use between the months of December and April and thereafter had it towed back to Fremantle for annual maintenance.
It is common ground that "Le Shed" was approximately 10 metres by 11 metres in size and that its all-up weight was approximately 40 tons. There was evidence that with some modification, and with the installation of two large diesel engines (for which there was no provision in the construction of the pontoon) the vessel could have been motorised but the modifications required to the structure and the cost of installing the necessary large diesel engines and steering equipment would have been prohibitive. It is common ground that it was not feasible, therefore, to modify "Le Shed" so as to make it self-propelled.
After "Le Shed's" arrival at Rottnest, it attracted a lot of attention from other mooring owners at the island. The defendant received complaints because of the nature and size of the vessel and because its presence at Narrow Neck was a new innovation for the Island. There was evidence, which I accept, that other houseboats were taken to the island during that time but they were self-propelled vessels and conceptually different to "Le Shed".
By August 1993 both the plaintiff and the defendant were aware that the presence of "Le Shed" at Narrow Neck had caused some consternation to other boat owners holding moorings at Narrow Neck. There was at that time discussion amongst boat owners that the presence of such a vessel without a means of self-propulsion was undesirable. In addition, the defendant was aware that there was a prospect of other unpowered houseboats, being taken to the Island for use as houseboats.
It is common ground, however, that at the time "Le Shed" was taken to Rottnest there were no provisions in either the Rottnest Island Authority Act 1987 ("the Rottnest Island Act") or in the Rottnest Island Regulations 1988 ("the Rottnest Island Regulations") which prevented "Le Shed", or indeed any other house-boat, from remaining moored permanently on a mooring at Rottnest Island.
The plaintiff was, however, concerned about the future of "Le Shed" at Rottnest because he was aware that complaints had been made about the vessel being moored at Narrow Neck. He arranged for his solicitors, Cockle & Co, to write to the defendant to confirm what he understood to be the position. In that letter of 2 September 1993, (page 125-126-DB) the plaintiff's solicitors wrote in relation to his mooring "Le Shed":
"My client would not have proceeded with the construction of the house-boat or the enormous cost in strengthening the mooring without your authority contained in your letter dated 21 October 1991.
My client is now alarmed at the thought that the Authority is submitting new regulations to the Minister and part of these regulations state that all vessels moored at Rottnest are required to be motorised and capable of a speed of at least 5 knots into a 30-knot gale. Clearly my client's houseboat could not comply with any such regulations.
I have been instructed that unless the Authority can guarantee that any new regulations only apply to future mooring by house‑boat owners, my client will seek compensation through the courts if necessary, for the cost of purchase and construction of 'Le Shed' and the strengthening of the mooring."
In response to that letter, Dr Back wrote back to the plaintiff's solicitor as follows:
"Dear Sir,
I refer to your letter dated September 2 1993, regarding the above mooring site and the houseboat 'Le Shed'.
I confirm that 'Le Shed' was granted permission to moor at Rottnest Island under the existing Rottnest Island Authority Act and regulations and this vessel will continue to be subject in accordance with this Act. There has already been one instance where the integrity of this mooring has failed under the load of 'Le Shed'. As with other lessees, an inspection report on the mooring tackle will be required annually.
Mr Maclean is well aware of proposals put forward for consideration by the Authority, Mooring Licensees' Association and other parties relating to controlling some 30,000 boating visits yearly. It is likely there will be some changes to the current regulations in the future. Mr Maclean will continue to be subject to the existing regulations unless there is cause for the mooring registration to be cancelled.
Yours faithfully
Dr C J Back
Chief Executive Officer"
That letter has been set out in full in these reasons because it also forms part of the plaintiff's claim against the defendant as will be discussed later in these reasons.
The plaintiff maintains that as a result of that further letter to his solicitors, he expended further sums on the upgrading of "Le Shed" as follows:
"Upgrade 12 volt system including wind generator installation and replace batteries with deep cycle battery bank   $3,200
Upgrade toilet system with Lectrosan treatment plant    $2,600
Replace carpet   $400
Replace barbecue   $120
Additional fridge Engel second-hand   $580
Purchase Sevylor Rubber Duck   $1,000
Purchase 3.5 hp Taihatso Outboard Motor   $840
Complete repaint (materials only)   $650
Total  $9,390"
As will be discussed later in these reasons, the plaintiff maintains that as a result of the letter of 21 October 1993 and what he then understood to be the guarantee that his vessel would continue to remain on the mooring at the Island, subject to the Act and regulations as they were at the date of his application in October 1991, he expended these additional sums in the upgrading of "Le Shed".
The exhibits reveal that upon receipt of the letter from Cockle & Co of 2 September 1993, Dr Back referred that letter to the Moorings Subcommittee of the defendant for consideration. In addition, Dr Back advised the plaintiff's solicitors that he had taken that course ( page 127-DB).
The correspondence was considered by the Moorings Subcommittee of the defendant on 22 September 1993. In agenda item 6, reference is made to receipt of the letter from the plaintiff's solicitor and discussions ensued about the proposals that were under consideration by the defendant to amend the regulations. In the minutes of the Moorings Subcommittee (page 138-DB), the following recommendation is recorded:
"RECOMMENDATION - that the lessee of Narrow Neck 86 be given notice of the Rottnest Island Authority's intentions to amend the Regulations which will exclude houseboats and other floating objects and recognising that permission had been given for a houseboat to be moored on Narrow Neck 86 and that this permission is not given in perpetuity. The lessee should be advised that any breaches of existing regulations could result in the Authority withdrawing its permission for a vessel to be moored on Narrow Neck 86."
Dr Back knew of that recommendation prior to his corresponding with the plaintiff's solicitors on 21 October 1993. That letter, which Dr Back maintains followed the recommendation of the Mooring Subcommittee, provides:
"Dear Sir
I refer to your letter dated September 2, 1993, regarding the above mooring site and the houseboat 'Le Shed'.
I confirm that 'Le Shed' was granted permission to moor at Rottnest Island under the existing Rottnest Island Authority Act and Regulations and this vessel will continue to be subject in accordance with this Act. There has already been one instance where the integrity of this mooring has failed under the load of the 'Le Shed'. As with other lessees, an inspection report on the mooring tackle will be required annually.
Mr Maclean is well aware of the proposals put forward for consideration by the Authority, Mooring Licensees Association and other parties relating to controlling some 30,000 boating visits yearly. It is likely there will be some changes to the current regulations in the future. Mr Maclean will continue to be subject to the existing regulations unless there is cause for the mooring registration to be cancelled.
Yours faithfully
Dr C J Back
Chief Executive Officer"
A perusal of that letter indicates that it does not comply with the recommendation of the Mooring Subcommittee in that the letter does not refer to the intention of the defendant to amend the regulations to exclude house-boats and other floating objects as recommended at the meeting of 22 September 1993.
It should also be mentioned that as part of the history surrounding the proposed amendment to the Rottnest Island regulations, the plaintiff wrote to the defendant by letter addressed to the Rottnest Island Review Board on 10 October 1995 (document 75 - page 165 DB).
In that letter, the plaintiff wrote:
"I own a houseboat which is not powered and is towed to Rottnest every summer and returned to Fremantle for winter. It is rumoured that non-powered boats might be excluded from the Island next year. I see no reason why environmentally friendly boats like mine should be excluded. … The premise all boats should be powered for safety reasons is not valid as the safest boat is one securely moored and not moving."
It follows, in my opinion, that at least by 10 October 1995 the plaintiff was aware of the prospect of amendment to the regulations, which would have included the exclusion of non-powered boats from mooring at the Island. Ultimately, the Rottnest Island Regulations were amended with effect from 31 August 1997. The amendments were published in the "Government Gazette" of 4 July 1997, page 3510, (313-DB).
By those amendments, and in Division 3, a definition of "suitable vessel" was introduced. That definition provides:
"'suitable vessel' means a vessel which -
(a)has a length of at least 6.4 metres;
(b)is a sailing vessel or has its own form of self-propulsion capable of achieving a speed of 5 knots; and
(c)has adequate insurance cover."
In addition, by reg 29 of the same amending regulations, it provided:
"Unattended vessels
29(1)A person shall not, without permission, cause or permit an unattended vessel to remain secured to a mooring on a mooring site for a period of longer than 24 hours."
The end result of those two amendments, which came into effect on 31 August 1997, was that "Le Shed" could not conform with the regulations. As I have already indicated in these reasons, "Le Shed" was not capable of being powered so as to meet the definition of "suitable vessel". Whilst the plaintiff could have overcome the difficulties arising from reg 29 by arranging for somebody to occupy the vessel whilst it was at Rottnest, it was not practicable for the plaintiff to comply with the requirement that the vessel be capable of achieving a speed of 5 knots.
In the end result, the plaintiff did not return the vessel to Rottnest after the coming into operation of the amendments on 31 August 1997.
There was evidence, which I accept, called on behalf of the plaintiff that since the coming into operation of the amended regulations, he has endeavoured to sell "Le Shed" but has been unable to do so. The vessel remains in the fishing boat harbour at Fremantle and has not been maintained. The plaintiff's evidence was that he is not prepared to expend money in maintaining the vessel, as he is unable to utilise it in the manner he desires. There was evidence, which I accept, that it would be possible for "Le Shed" to be placed on a mooring in the Rockingham area at Mangles Bay, where it could be used as a house-boat but the plaintiff has indicated that Mangles Bay is not acceptable to him as a place to use the vessel.
In addition, the plaintiff called evidence from Martin Christopher Box, ("Mr Box") to the effect that "Le Shed" is now virtually unsaleable and that its only remaining value would come from the sale of its contents and for scrap metal. I accept Mr Box's evidence that the contents of "Le Shed" (that is the fitting and fixtures) could be sold for about $20,000 but that the pontoon is virtually unsaleable.
I turn from dealing with the history and factual matters surrounding the plaintiff's arrangement with "Le Shed" and his involvement with the defendant to the way in which the plaintiff's case is pleaded against the defendant.
The plaintiff pleads against the defendant three causes of action:
(a)Negligent misrepresentation.
(b)A breach of s 9 and s 10 of the Fair Trading Act 1987.
(c)Estoppel.
The plaintiff pleads that the defendant made two representations, each of which it is said is actionable on each cause of action.
The first representation pleaded arises out of the conversation that is said to have occurred between the plaintiff and Dr Back on 16 October 1991 following the plaintiff's request to moor "Le Shed" permanently at Narrow Neck. It is pleaded in par 6 of the amended points of claim that Dr Back advised the plaintiff that he could moor his houseboat permanently on Rottnest Island.
The second representation pleaded against the defendant arises out of the letter of 21 October 1993 from Dr Back to the plaintiff's solicitors which is set out earlier in these reasons. It is pleaded in par 11 of the statement of claim that the defendant represented to the plaintiff that the plaintiff would not need to comply with any new regulations.
The plaintiff claims that the defendant made each of these representations and that in doing so its conduct gave rise to the plaintiff's causes of action.

It is necessary to deal with each of the plaintiff's claims separately as each cause of action involves separate and different considerations.
In relation to the claim for negligent misrepresentation, the plaintiff contends, as outlined earlier in these reasons, that in the verbal conversation of 16 October 1991, the defendant advised him that "Le Shed" could be moored permanently at Rottnest. The plaintiff pleads, and it is not disputed, that Dr Back advised him that he could moor his houseboat permanently on Rottnest Island.
In relation to this cause of action the defendant admits that it owed to the plaintiff a duty of care and admits that the representation was made. The defendant denies that either the first or second representations were made in breach of its duty of care and pleads that both representations were true in substance and in fact.
As the facts outlined earlier in these reasons indicate, when the plaintiff first sought to bring "Le Shed" to Rottnest, there was nothing either in the Rottnest Island Act or in the Rottnest Island Regulations which prevented the plaintiff from mooring "Le Shed" permanently at Rottnest.
The way in which the plaintiff's claim was developed at trial was that the defendant was under a duty of care to advise the plaintiff that there was a possibility that some time in the future, either the Rottnest Island Act or the Rottnest Island Regulations may be amended in such a manner as to prevent the plaintiff from mooring "Le Shed" at Rottnest.
The plaintiff's evidence was that the representation occurred in the verbal conversation between himself and Dr Back on 16 October 1991. Dr Back's evidence was that he could not recall any of the details of the conversation. On balance I accept the plaintiff's evidence that he was told by Dr Back that he could permanently moor his proposed houseboat on his mooring at Narrow Neck. The plaintiff pleads that the representation was false and that as a consequence he was unable to moor the houseboat permanently at Narrow Neck thereby causing loss and damage to which I have earlier referred.
The plaintiff maintains that it was reasonable for him to act upon Dr Back's representation that "Le Shed" could be moored permanently at Narrow Neck and that as a result of his reliance upon the representation, he expended money in the construction of "Le Shed" in the manner outlined earlier in these reasons.
In providing that advice to the plaintiff, Dr Back, as a matter of law, should be taken to have provided the information to a person "not particularly intelligent or well informed, but perhaps of somewhat less than average intelligence and background knowledge" see Annand and Thompson Pty Ltdv Trade Practices Commission (1979) 40 FLR 165 at 176 cited with approval in Siddons v Stanley Works (1991) 20 FCR 14 per Wilcox and Heary JJ at 17.
In this case and on the facts as I have outlined earlier, it is to be remembered that the plaintiff had held a mooring at Rottnest Island since 1984 and had previously owned and moored two vessels on that mooring. He had therefore some experience in relation to mooring vessels at Rottnest and the defendant's records indicated that the plaintiff was to some extent familiar with the requirements for mooring vessels at the Island.
That having been said, however, it is also significant that Dr Back was aware that the information he was providing to the plaintiff would be of critical importance in the plaintiff's decision making process as to whether or not to buy and upgrade the pontoon. In Shaddock v Parramatta City Council (1981) 150 CLR 225, the High Court of Australia dealt with a case in which a solicitor made inquiries of a municipal council as to whether land, a client was going to purchase, was subject to any road widening proposals. The solicitor was told that no such proposals were in existence. In fact, proposals affecting the land had been approved by the council and the time of the inquiry. In that case, inquiries were made both orally to an officer of the defendant council and by way of a form submitted to the council under the relevant provision of the Local Government Act. The High Court, comprising Gibbs CJ, Stephen, Mason, Murphy and Aickin JJ held that the failure to mention the road widening proposals on the written certificate was erroneous and in breach of duty. The court also held that the council owed no duty of care to the purchasers in responding to the telephone inquiry, where the information was given by an unidentified person and was not confirmed.
In the present case, the plaintiff's inquiry was of Dr Back, who was then known to the plaintiff to be the Chief Executive Officer of the defendant. In addition, as I have indicated earlier in these reasons, his discussion with Dr Back was confirmed in writing. In those circumstances, in my opinion the defendant did owe to the plaintiff a duty of care to ensure that the information provided to him was accurate. It was made clear to Dr Back that the plaintiff intended to act upon the information given in making the decision as to whether or not to purchase the pontoon.
The difficulty the plaintiff faces in relation to this aspect of the cause of action is that the information provided by Dr Back was neither false nor misleading at the time it was provided. At that time, there is no dispute that there were no proposals either under consideration or contemplated that would exclude an unpowered houseboat from a permanent mooring at Rottnest. It is not to the point to contend, as counsel for the plaintiff does, that the plaintiff should have been advised that at some time in the future there might be the prospect that either the Act or regulations would be amended in such a way as to exclude the plaintiff's vessel from mooring at the Island. The plaintiff's contention on this cause of action fails, in my view, simply because there was no misrepresentation. Dr Back was entitled to assume, as indeed was the plaintiff that, under the law as it then stood, there was no reason why the plaintiff could not permanently moor an unpowered houseboat on his mooring in Narrow Neck. In my opinion, Dr Back had no obligation in law to point out to the plaintiff that at some time in the future, by way of amendment either to the Rottnest Island Act or the Rottnest Island Regulations there was the possibility that his vessel could be excluded from moorings on the Island.
It follows, in my opinion, that the plaintiff's claim, based on negligent misrepresentation in relation to the first representation, must fail.
In relation to the cause of action for negligent misrepresentation based upon the second representation, in my view, the matter is different. The second representation was based upon Dr Back's letter to the plaintiff's solicitors of 21 October 1993, which was written following the meeting of the Mooring Subcommittee of the defendant, to which I have referred earlier in these reasons. The recommendations of that subcommittee, which were subsequently endorsed by the defendant's main committee, have been set out earlier in these reasons. Had the recommendation been followed, Dr Back should have advised the plaintiff that it was the defendant's intention to amend the regulations so as to exclude houseboats and other floating objects and to point out to him that the permission which had been given for the mooring of "Le Shed" at Narrow Neck was not given in perpetuity. In my opinion, not only did Dr Back's letter fail to carry out that recommendation, in my view, it was clearly misleading. Dr Back's letter is set out earlier in these reasons.
In dealing with this representation, I adopt the same principles of law referred to in relation to the first representation as, in my view, the same considerations apply. The difference between the first representation and the second, in my opinion, is that the second representation was formulated in a way that was both inaccurate and misleading. As I have indicated earlier in these reasons, as a result of the second misrepresentation the plaintiff claims to have expended $9,390 in upgrading "Le Shed". I will deal later in these reasons with the plaintiff's proper measure of damages in that respect.
The second basis of the plaintiff's claim arising out of each of the two representations is made under the provisions of the Fair Trading Act 1987.
In relation to this claim, the plaintiff pleads that both the first and second representations made by the defendant were in the course of, or for the purpose of, the business, trading or commercial activities of the defendant. In view of the conclusion that I have reached as to the plaintiff's claim for negligent misrepresentation, it is not necessary to reach any final conclusion as to whether or not the defendant made the representations in the course of its trade or commerce: see Commonwealth of Australia v The State of Tasmania & Ors (1983) 158 CLR 1 per Gibbs CJ at 116-117.
The plaintiff's claim under this cause of action suffers from the same fate as the plaintiff's claim in relation to negligent misrepresentation in relation to the first representation. There is nothing about that representation which could be said to be a breach of s 10 of the Fair Trading Act which provides:
"(1)A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive".
The plaintiff's claim on the first representation fails because, in my view, there was nothing about the representation that could be said to be misleading or deceptive, as required by that section. Nor, in my view, was there anything about the defendant's conduct which could be said to be unconscionable.
In relation to the second representation, it is not necessary for this matter to be determined in view of the conclusion that I have reached that the plaintiff's claim for negligent misrepresentation is made out.
For these reasons it is not necessary to determine whether the plaintiff's claim, based upon the provisions of the Fair Trading Act, is beyond the limitation period.
The third alternative basis upon which the plaintiff basis its claim is that of equitable estoppel.
In relation to this claim, the plaintiff maintains that the defendant's conduct in making the negligent misstatements was such that the plaintiff was entitled to, and did rely upon those statements to his detriment. It is said that it would be unjust for the defendant to avoid the consequences of the misstatements.
In Waltons Stores (Interstate) Ltd v Maher & Anor (1988) 164 CLR 387 per Mason CJ and Wilson J at 404:
"One may therefore discern in the cases a common thread which links them together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has 'played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it': per Dixon J in Grundt (1937) 59 CLR at 675; see also Thompson (1933) 49 CLR at 547. Equity comes to the relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption."
The difficulty with the plaintiff's claim based in estoppel (apart from the truth of the first representation) is that there is no authority to support the view that a plaintiff can claim equitable damages or equitable compensation based upon a cause of action in estoppel. It is not necessary for the purpose of these reasons to analyse the elements of a cause of action based in estoppel, which were carefully considered by Brennan J in Waltons Stores (supra), as in my view the plaintiff's claim based upon equitable estoppel does not fall for consideration, bearing in mind that the plaintiff's claim for negligent misrepresentation on the second of the two representations has succeeded.
The elements of equitable estoppel as explained by Brennan J in Waltons Stores at 428-429, reveal different considerations than those which apply in this case. Bearing in mind that the amendments to the Rottnest Island Regulations, discussed earlier in these reasons, were ultimately the cause of the plaintiff not being able to moor "Le Shed" at Narrow Neck, it has not been established that it was within the capacity of the defendant to avoid that consequence. The amendment to the Rottnest Island Regulations made on 4 July 1977 were made by the Governor in Executive Council. Whilst it may be, that the defendant played some part in the instructions for the formulation of those regulations, they were ultimately an act of the executive arm of government and not within the control of the defendant. Whilst that does not necessarily dispose of the plaintiff's cause of action, if there be one, based upon equitable estoppel, it is clear, in my opinion, that the circumstances of this case are such that even if there was a positive action upon which to base a claim of equitable estoppel of the kind referred to by Brennan J in Waltons Stores, this case would not fall within that principle. I turn now to the question of damages.
As indicated earlier in these reasons, the action of the plaintiff which succeeds is the claim for negligent misrepresentation based upon the second representation. At the time that representation was made in Dr Back's letter of 21 October 1993, the plaintiff had already purchased and upgraded the pontoon to a houseboat. Whatever effect the second representation had on the plaintiff's conduct, it had nothing to do with the capital expenditure on the conversion of the pontoon to a houseboat.
As indicated earlier in these reasons, the plaintiff claims that as a result of the second representation, he expended further money on the upgrading of the equipment on the vessel. The items of expenditure have been referred to earlier in these reasons and they total $9,390. As can be seen from an analysis of those items, each related to the purchase of items of equipment necessary in the plaintiff's eyes to upgrade the barge. Some of those items, however, could properly be described as routine maintenance or replacement items for fair wear and tear. In addition, as indicated in these reasons, the plaintiff had use of the items of equipment until "Le Shed" left Rottnest during 1997. Some of those items would still be available on the houseboat and would be part of the $20,000 that could be obtained from selling the fittings on the vessel, as explained in evidence by Mr Box.
It is not possible to be precise as the damage sustained by the plaintiff in this regard, but an analysis of the items claimed by the plaintiff and allowing for the use that the plaintiff would have had of those items whilst "Le Shed" was moored at Rottnest, leads me to conclude that a discounted figure should be allowed. In making that assessment, it should also be borne in mind that some of those items of equipment, as I have already indicated, can be sold so that the plaintiff will not entirely lose their value.
Doing the best I can with the figures provided to me, in my opinion it would be fair to allow the plaintiff the sum $6,000 with respect to this claim. In my opinion, however, the plaintiff is entitled to no further damages with respect to the negligent misrepresentation as further damages which the plaintiff claims are a result of the vessel being moored at various locations and the cost of berthing. That expenditure is a direct result of the amendment to the regulations, which caused the plaintiff to leave the vessel at Fremantle. It is a consequence of the fact that the vessel has proved difficult to sell.
The plaintiff also has claimed damages for distress and inconvenience, disruption and waste of time. Although there is no specific pleading of such a claim, it was advanced in the course of argument. In support of the claim, the plaintiff cited Zoneff & Anor v Elcom Credit Union Ltd (1990) ATPR 51,142 at 51,161:
"It was not in dispute that in a proper case damages of this nature could have been awarded in deceit and that the measure of damage under sec 52 and 82, being akin to that in tort, permitted the recovery of such damages. See McGregor on Damages 15th ed at para 1737 and cases there cited and cf Steiner & Anor v Magic Carpet Tours Pty Ltd & Ors (1984) ATPR 40-490 at p 45,642. This is so at least if such damages are reasonably foreseeable."
Whilst the plaintiff in one paragraph of his proof of evidence does indicate that he sustained such damage, I am not persuaded that this is an appropriate case for any award to be made even if such damage is allowable: see Carroll v Azolia Pty Ltd [2000] WASC 95 per Master Bredmeyer. In my opinion, any distress, inconvenience, disruption or waste of time occasioned to the plaintiff was not caused by the actions of the defendant but were a consequence of the amendments to the regulations discussed earlier in these reasons.
In the end result there will therefore be judgment for the plaintiff in the sum of $6,000 and I will hear the parties as to other appropriate orders to dispose of this action.