Monk v Baines No. DCCIV-01-1932
[2003] SADC 13
•12 February 2003
MONK v BAINES
[2002] SADC 13Judge Vanstone
Civil
The plaintiff makes a series of claims arising out of an arrangement which evolved during the period April 2000 to December 2000 between himself, the defendant, and the defendant’s son, Adam Baines (Adam), whereby Adam was to drive the plaintiff’s speedcar in the 2000/2001 season (and perhaps beyond that season) and the defendant, a motor mechanic, was to perform some maintenance work and effect some mechanical improvements to the car. He seeks, for example, a declaration that he is the legal owner of the speedcar and its return from the defendant’s custody, and exemplary damages.
In response to the plaintiff’s claim the defendant has counter-claimed for the value of parts and labour provided by the defendant in relation to improvements to and maintenance on the car and he has claimed for costs said to have been incurred in storing the car during part of the period when the defendant retained possession pursuant to the lien he claims. The total of his claims as set out in the pleadings is $29,552.63, although during the trial the defendant’s counsel indicated that the correct figure was $24,156.19.
The plaintiff’s speedcar, SA registered number 3, has a Fontana engine – about six years old – which was purchased by the plaintiff in 1997 for $22,000 and which has been modified to some extent by the defendant, and a Stealth chassis frame purchased new by the plaintiff at the end of 1999 for $4,300, that replaced the chassis frame in a rolling Stealth chassis (which is a complete car less the engine) which the plaintiff purchased for $17,500 a year or so earlier. There were a number of other expensive components which were fitted to the car during the time of the plaintiff’s ownership.
The plaintiff was 25 years old at the time of trial and works as a plasterer in partnership with his father, Max Monk. Father and son have shared an interest in speedcars over a number of years. Although the plaintiff has no training as a mechanic, I am satisfied he has a good understanding of the workings of the engine and suspension in his car.
The plaintiff’s friendship with Adam stemmed from seeing him at the Adelaide Speedway City as a fellow-competitor since about 1997.
In the October 1999 to April 2000 season the plaintiff assisted Adam on several occasions with Adam’s speedway car. Adam, who is now 27 years old, had had a good degree of success in racing speedcars and in March 2000 when Adam sold his own car, the plaintiff raised with him the possibility of Adam driving the plaintiff’s car during the following season. The plaintiff said he hoped to see his car competing at a higher level as a result of Adam’s superior skill as a driver.
In the event, Adam drove the plaintiff’s car in the last race of the 1999/2000 season, which was on 8 April 2000, and in two races in the following season, being the weekend of 9 December 2000 and 22 February 2001 and the days following.
The defendant is 53 years of age. Until about September 2000 he conducted a business under the name Baines Performance Engines, which involved building engines for racing cars and modifications of non-racing engines for the purpose of enhancing performance. That business was sold to DPR Enterprises in September 2000. The defendant continued to perform the same type of work for that business for a period.
The defendant has been involved in speedcar racing over many years. He built the engines of his own speedcars. He said he was Australian Champion in 1974 and 1988.
Plainly racing has been a keen interest which the defendant and his son Adam have shared, with some success.
Prior to Adam driving the plaintiff’s speedcar for the first time on 8 April 2000 some work had to be done to get it ready. Because of the disparity in the size of the plaintiff and Adam, a different seat and different torsion bars and springs had to be fitted. The plaintiff said (t/s 61) that he purchased a new seat for that purpose and that the defendant had suitable springs and torsion bars, all of which were fitted to the car. These items were fairly easy to remove and he assumed that ultimately his own parts would go back onto the car and the defendant would retrieve his or Adam’s. The plaintiff said that after the initial race there were further discussions about the following season, initially between himself and Adam and then involving the defendant, who he said approached him on the topic (t/s 65).
The plaintiff’s evidence was that the defendant offered to “refresh or renew the engine” (t/s 65) checking such things as rings and bearings and that he said he would do so at no cost to the plaintiff, as long as the plaintiff was prepared to pay for any parts which the process revealed needed replacing. Not surprisingly, the plaintiff agreed to that proposal. However, there was also discussion about more major work, more in the nature of development work than maintenance. This included quite dramatic modifications to the cylinder head. The matter of who most wished this work to go ahead and the terms of the agreement reached in relation to it were a matter of dispute. The plaintiff said that the defendant offered to do without charge such of the work as he could himself perform and to pay half of all of the costs of the work which would have to be subcontracted – such as boring, welding and machining work – and half of the parts and materials (t/s 69). He said the defendant estimated those out of pocket expenses to be likely to amount to about $6,000. After giving the proposal some thought the plaintiff agreed to it (t/s 70). The plaintiff also said that later the defendant made a proposal in relation to modifying the camshaft and the plaintiff again said he would think it over. However, on his account, the defendant went ahead and embarked on that work. The plaintiff said he was now prepared to meet his half of the outgoings, notwithstanding that he claimed not to have given final approval (t/s 77).
On the other hand, the defendant’s evidence was that in respect only of the cylinder head modification he was prepared to meet half of the out of pocket expenses for welding and machining (t/s 439) and that in respect of all development work he would provide his own labour free of charge provided Adam drove the car for the whole of the forthcoming season (t/s 439). (It was suggested at some points that the condition relating to Adam driving the car extended beyond the 2000/2001 season, but in my view it has not been proved that this was ever clearly articulated.)
Insofar as there is variation between the two accounts of the terms of the arrangements as to the development work, I prefer, with one reservation, the plaintiff’s version. But I find that the arrangement was hopelessly vague and that little if any attention was given to the line which would divide development and maintenance work. Although the cylinder head work was ultimately successful, it did cause some consequential problems which had not been anticipated, much less discussed and which involved significant expense; oil leaks, for example, in other areas. In addition, I find that the defendant did not keep the plaintiff apprised of the extent and detail of the various expenses which were being incurred. Some of them were with persons whose services the defendant often used and from whom he might expect, for his own projects, a very competitive price. Some arrangements were for cash. This informality flowed through to the arrangement between the plaintiff and the defendant. Had the accounting between the plaintiff and defendant been approached more formally and had invoices been presented and met more promptly (which they were not always), then more conservative decisions about the extent of work to be done might have been made, especially by the plaintiff, whose means were limited.
As to the camshaft work I prefer the evidence of the defendant. He claimed a specific recollection of all the discussions in relation to it (t/s 442-3) and there is no doubt that expense was incurred in doing the work. While the plaintiff claimed to have paid $480 to Mr Haydon of Alcohol Racing for rough machining of the camshaft, he did not obtain an invoice for that work – even belatedly as he did for other work done by Mr Haydon (see P8 and P9) – and I prefer the defendant’s evidence that it was he who paid that amount. On any version, the entirety of that liability would not fall to the defendant and so I accept that he met that account only out of a sense of responsibility to Mr Haydon. I note also that the plaintiff paid, in full, a large invoice to Crane Technologies (see D4) relating to camshaft work which is consistent with his acceptance of responsibility for all costs incurred in relation to the camshaft. On the topic of the camshaft I found the plaintiff’s limited account of discussions rather puzzling, although I attributed it to lack of memory rather than any wish to mislead.
There was also conflict in the evidence of the plaintiff and defendant as to who was responsible for expenses incurred for tyres and accident damage. It would normally be expected that in relation to maintenance of the car the owner would be responsible. Indeed that was generally the arrangement between the plaintiff and the defendant. It is clear though that tyres were a considerable expense and the defendant was inclined to equip the car with more new tyres than the plaintiff would, of his own volition, have used. The plaintiff said that the defendant agreed to pay half of the tyre expenses. The defendant denied this. There was similar disagreement over the costs of repairing accident damage. The plaintiff said that after the car was damaged in the 9 December 2000 race at Parramatta, the defendant told him (t/s 94) that he would not expect the plaintiff to pay for every crash Adam had and that he would meet half the bills. It is clear on the evidence that the defendant did in fact meet roughly half the cost of a number of invoices for tyres. The very fact that he did so tends to support the plaintiff’s version as to that. In respect of accident damage I found the plaintiff’s evidence quite convincing. In all the circumstances of the agreement between the three men, one would expect that the plaintiff would not shoulder the whole responsibility for expense incurred in that way.
I shall not detail the events which marked the fracturing of the relationship between the plaintiff and defendant and Adam. In essence it seems that in the lead up to a race meeting at Parramatta in January 2001 there was a problem over monies outstanding on two accounts, one to Mr Haydon of Alcohol Racing and another to Mr Cooper for tyres. The defendant told the plaintiff that unless these were paid it would be, in effect, unethical to race. The plaintiff attended to payment of the firstmentioned. He did not consider the latter to be of great moment. The plaintiff was disappointed not to attend the Parramatta race. However, subsequently it was agreed that the car would be raced in Adelaide on the weekend of 22 February 2001. That meeting was initially successful but Adam was involved in a collision during the racing on day 3 and had to retire. That ill fortune probably hastened the degeneration of the relations between the men. There was discussion about future meetings but nothing came of them. I accept that the plaintiff had not given up on the relationship and that Adam’s preoccupation with other matters and loss of interest in driving was at least one significant factor. The plaintiff had discussions with another experienced driver about replacing Adam.
On 18 April 2001 the plaintiff went to the defendant’s home to pick up the car and trailer and found the trailer had been removed from the premises. Adam told the plaintiff it was in use by the defendant for transporting items to the defendant’s new home at Kersbrook.
When the plaintiff approached the defendant at his workplace on the next day the defendant told him he had “a problem” in delivering the car up to the plaintiff. Ultimately in discussions over the next few days, some of which included Max Monk, that refusal was confirmed.
At that stage the defendant was not asserting that upon payment of any particular amount the speedcar would be delivered up. Although the defendant agreed to bring the trailer back from Kersbrook to his home, that did not occur. On 22 April 2001 the plaintiff and his father again spoke with the defendant. The defendant asserted that monies were owing by the plaintiff to the defendant but claimed not to know the amount.
On 27 April 2001 solicitors acting for the plaintiff hand-delivered a letter to the defendant (Exhibit P2) demanding the return of the car, trailer and its contents. By letter dated 28 April 2001 (Exhibit P17) solicitors then instructed by the defendant advised that the defendant claimed “an equitable interest in the subject property” and was “in the process of obtaining an estimate of his value in the subject property”. They further advised that their client declined to return the property by the time stipulated by the plaintiff. There was no mention in terms of the claim of a lien or of any specific amount said to be owed. On any view the defendant had no right to retain the trailer or such of its contents as were the property of the plaintiff.
Subsequently the plaintiff and his father retrieved the trailer from the defendant’s Kersbrook premises. They did so surreptitiously, but reported its removal to the police at Williamstown. Upon examination of it the plaintiff found that a number of spare parts belonging to him had been removed from it.
Generally I found the plaintiff’s evidence to be impressive. He had what I found to be a good recollection of events and under cross-examination was prepared to make appropriate concessions. I found his demeanour to be compelling. In almost every instance the proven history of payment of accounts supported his version of the terms of the agreement.
The plaintiff also derived some limited but significant support from his father’s evidence. I found Max Monk to be an honest and reliable witness, and I accept his account of all his dealings with the defendant after the parties came into disagreement.
I was less impressed with the defendant’s evidence. At times I found him to be evasive, in the sense that he would descend into unnecessary detail about mechanical matters without clearly answering the question in issue. Furthermore he was all too ready to make assumptions about events, to reconstruct them and to guess at what was said on issues such as agreements struck between himself and the plaintiff. His conduct in relation to these proceedings does him no credit and in my view tends to undermine his reliability. For example, having refused to give up possession of the plaintiff’s speedcar he has, as noted, claimed storage fees in relation to a period during which he has housed it at premises belonging to an associate. Given that his claim of having a lien was always contentious and that he did not assert that any money ever changed hands in payment of the claimed fees, I find that the claim for those fees quite remarkable. Even less meritorious was his conduct in respect of the plaintiff’s trailer. The defendant never had any claim in respect of that, yet he declined to return it and used it, without permission, to assist him in moving to his new house premises at Kersbrook. The plaintiff and his father had to resort to removing it from there. In addition he has claimed a mark-up on most of the parts which he obtained or supplied for the plaintiff’s vehicle but for which he expected payment. I find that there was never any discussion of a mark-up on any such parts. Plainly the arrangement was not that of a retailer and customer. Then, the defendant has belatedly claimed for the cost of his labour in relation to the vehicle. I find that that claim is untenable. Even further, the defendant is plainly in breach of an undertaking he gave to the court on 16 April 2002 in relation to the place at which the vehicle would be stored. The defendant claimed that his solicitors told him he was entitled to move the vehicle but there is no support for that assertion and I am not inclined to accept it. Furthermore, the defendant admitted that since retaining the vehicle he has removed the engine from it. In addition the plaintiff said, and I accept, that when he saw the vehicle on 1 November 2001 the Kinsler high speed bypass and the fuel pump had been removed and were detached from the vehicle. There can be no justification for that.
The evidence of the defendant’s son, Adam, did not impress me any more than that of his father. Again I find it to be flawed by reconstruction of events to suit himself and an unwillingness to acknowledge any worthy conduct in the plaintiff at all. An example of that is found in his criticism and lack of appreciation of extensive work in the nature of plastering and building performed by the plaintiff gratis on Adam’s home.
I turn then more specifically to the defendant’s counter-claim for reimbursement of monies expended by him for debts incurred with businesses supplying specific services in relation to the car or parts for it, payment for his own work on the car, for storage fees in respect of a period when the car was housed at DPR Enterprises and for running costs.
As has been seen, the agreement struck between the plaintiff and the defendant, as modified over a period, was in extremely general terms. While it is fairly clear that both parties agreed to share at least some of the costs involved in modifying the car’s cylinder head and that the defendant would provide his labour in respect of that project free of charge, it is less clear whether that agreement extended to any, and if so what, parts and materials required for the modification, and it is not at all clear what was to be the position with monies required for other modifications or repairs which only arose as a consequence of the cylinder head work.
In proof of the defendant’s counter-claim a book of copy documents, such as invoices and receipts, was produced by the defendant and went into evidence as Exhibit P19. It is convenient to work from that booklet rather than the counter-claim itself in analysing the various parts of the claim and to refer to the page numbers of that exhibit. Hundreds of separate items are referred to in P19. It was not always easy for either the plaintiff or defendant to identify with any precision what each item was or where it was used on the car or why it was necessary. There were many instances where the evidence on both sides as to particular items was brief and lacked some clarity, or where particular assertions by one were not fully put to the other. For all these reasons a degree of extrapolation must creep into the decision making on some of the items. In respect of the various amounts paid by either party or which remain outstanding there seems to be agreement between the parties that I should attempt to categorise each one in terms of my findings as to the agreements between them and then undertake the exercise of determining what should now be paid by way of reconciliation.
I find that the following invoices were for work directly concerned with or arising from the cylinder head development work and should have been shared: invoices contained within Exhibit P19 at pages 12, 17, 19, 26 to 27, 45, 57, 65 and 67.
Since these invoices have been paid by the defendant he should be reimbursed by the plaintiff to the extent of $1,109.
In respect of the work done in “refreshing” the engine and generally preparing the car for racing – where it was not disputed that the plaintiff was to be responsible for parts only – I find that the plaintiff is liable for reimbursement to the defendant for the springs referred to at page 1 and the torsion bars referred to in invoices 31, 33 and 35 and that they are therefore, the property of the plaintiff. The quantum of reimbursement in relation to these four items is $663.50.
My findings in relation to the agreement as to the camshaft means that the plaintiff is responsible for the invoices at pages 8, 24, 41 and page -4- schedule item d. That lastmentioned page appears at the very front of P19 and refers to a number of expenses for which no receipts were provided and which I have, for ease of reference, sequentially labelled “a” through to “g”. These costs total $840 and have been met by the defendant.
As to parts which I find were unrelated to the cylinder head development or the camshaft work, these are the plaintiff’s responsibility alone. In my view the following invoices refer to such parts: Exhibit P19, pages 3, 5 to 6 (but only half, being $115, as this bill was to be shared with another customer), 9 (but again only half, being $42, as this consists of a freight bill which should have been shared with another customer), 10 (but again the bill was shared with another customer and the plaintiff’s liability is only $262), 11 and 15 – as I am not satisfied that these parts relate to so-called development work – 23, 34, 37 (to the extent of $55 as the balance relates to another customer), 38, 42, 48, 49, 51 (but only to the extent of $34 as one of the “special fittings” went into the defendant’s stock), 56, 58, 59 and page -4- schedule of P19 items a, b, c, e, g. Addition of these amounts leaves a further indebtedness to the defendant of $2,819.50.
I have found that the defendant agreed to pay half of the expenses for tyres and crash repairs. Invoices at page 68 to 71 and page 74 relate to such expenses. In fact both parties have already met these invoices in approximately equal proportions and so I find that there is no need to deal further with them.
I mention invoices which I have not included in the categories just dealt with. The invoice at page 21 was withdrawn by the defendant as being irrelevant. In relation to the invoice at page 25, I accept that the wrong sized bolts were supplied and that the defendant should have returned them to the supplier. He still has them. They have not been paid for. In relation to the invoice at page 39 I find that the plaintiff has already paid for these valves in full, as indeed he should have. The amount otherwise owing as described in the invoice at page 50 was the plaintiff’s responsibility but I accept his evidence that he purchased sand and materials for work on Adam’s house of approximately equal value and that no further adjustment is necessary. In relation to the invoices at pages 52 to 55, the evidence touching these is scant. Pages 53 and 55 do not obviously relate to the plaintiff, not bearing his name nor showing any discount which he usually attracted and that at page 54 is a statement rather than an invoice. Neither the defendant nor Adam gave evidence as to the invoice at page 52.
The invoices at pages 60, 61 and 62 are duplicates of those at pages 48, 49 and 50. As to page -4- schedule, item f is 3 torsion bars which were originally on Adam’s own speedcar. These should be returned to Adam by the plaintiff if indeed the plaintiff has them. In relation to item h, which is a set of custom extractors and a speed muffler, I accept that these were the property of the defendant but I am not satisfied as to their value or as to the price which the defendant obtained when he sold them and, accordingly, I am not satisfied that the plaintiff has any liability in relation to them. Item i has been referred to as a Kinsler Hi Speed. As at the time of trial the defendant retained possession of it. I am not satisfied that the plaintiff has any liability in relation to it and it should be retained by the defendant.
In respect of the items at page -6- schedule under the heading “Development Work – Cylinder Modification” I have again labelled these “a” through to “f”. The items specified at a, b and c are referred to in P19 at pages 65, 66 and 67 and have been dealt with using that nomenclature. In relation to items d, e and f, I am not satisfied that the plaintiff should have to pay for these. It is not clear to me that the plaintiff is responsible for work performed by the defendant on his test cylinder head.
I move from Exhibit P19 to mention several other invoices which were separately tendered. Exhibit P11 relates to pistons which were required after the dyno testing revealed an oil leak. The need for them was consequential upon the cylinder head work although rather removed from it. Because pistons do wear and because these will remain on the car, in my view the plaintiff should have paid for them, as indeed he did. Therefore no adjustment is necessary.
The items mentioned in Exhibit D1 do not form part of the claim in this matter. Exhibit D4 relates to the camshaft work. The plaintiff has paid for it, as indeed I have found he should have.
This leaves a debt to the defendant of $5,432.
However there are further expenses which I find the plaintiff met in total but which it was agreed should be shared. These need to be offset against the $5,432. The first of these are the expenses referred to in Exhibits P8 and P9 being two invoices from Mr Haydon of Alcohol Racing totalling $5,742. The defendant should reimburse the plaintiff to the extent of half, being $2,871. The second such expense is referred to at page 66 of P19. I found the defendant’s evidence as to this unsatisfactory. The plaintiff said (t/s 157) that he was told by the defendant that the total charge by Mr Schaefer for the cylinder head work referred to was $700. He gave $700 in cash to the defendant to meet this bill. He provided the full amount rather than half because he knew that the defendant had met other expenses for which the plaintiff was responsible. The invoice however refers to an amount of $1,680. I am not satisfied that this is an invoice prepared contemporaneously with the work, as opposed to after the dispute arose. Notwithstanding my expression of doubt about its reliability during the trial the defendant did not call Mr Schaefer. I accept the plaintiff’s evidence on this topic and reject the defendant’s and find that the defendant should reimburse the plaintiff to the extent of $350.
Therefore an amount of $3,221 must be subtracted from the plaintiff’s indebtedness to the defendant. That leaves the plaintiff’s indebtedness to the defendant under the counter-claim as $2,211.
The spare parts of which the plaintiff seeks return are listed in Schedule 1 of the statement of claim. The defendant agreed in relation to most of them that he still possesses them. He offered no justification for having removed the plaintiff’s property from his trailer. Consequently I propose to order return to the plaintiff of such of the items as the defendant admitted he had.
They are listed in Annexure 1 hereof.
It is convenient to deal with the defendant’s claim that he has a lien over the vehicle. I set out that claim, which appears at paragraph 9 of his further amended defence and counter-claim.
9.As to paragraph 11 the defendant admits that he has refused to deliver the vehicle to the plaintiff. The defendant says that he has a workmen’s lien or alternatively a bailee’s lien or alternatively a common law lien over the vehicle pending the payment by the plaintiff to the defendant in the amount of $29,552.63 as pleaded in the counterclaim below. The defendant says that he is not obliged to deliver the vehicle to the plaintiff until his lien has been discharged.
It seemed to me that what was in fact being asserted at trial was a worker’s lien over the speedcar for the defendant’s charges for work done and materials supplied in relation to it, amounting to the figure mentioned above in the pleadings, as later varied.
In my view there are several difficulties with this assertion. Even if the circumstances of the defendant’s possession had been apt to found a valid retention of the property, I consider the lien would have been later lost in any event.
The creation of a lien is conditional upon a number of circumstances. One of those is that the claimant must receive possession for the same purpose for which the lien is claimed: see generally “The Artificer’s Lien”, RD Elliott, 1967, Law Book Company, and particularly at pp 18-48. Now the defendant originally took possession of the speedcar for the purpose of looking over the car and changing the seat and torsion bars. It was not contemplated that the plaintiff would be charged for the defendant’s work. Moreover, throughout the relationship, the defendant’s possession of the vehicle – which was interrupted when the plaintiff resumed possession of it for racing meetings – was as much for convenience and safe storage as for anything else. Although the defendant often worked on the car between meetings, that was never in the course of a commercial relationship. Prior to late April 2001, it was not suggested that the car would be held as security for payment of invoices raised by the defendant or by anyone else. Indeed the defendant never presented an account for his own labour to the plaintiff, and nor could he have done so having regard to their agreement.
Accordingly, on each occasion when the plaintiff resumed possession without any limitation being placed upon that possession, any possibility of the claim of a lien for work done to that time would have been lost: Hatton v Car Maintenance Company Limited [1915] 1 Ch 621. After the last occasion when the plaintiff resumed possession and then returned the vehicle, no further work was done.
Furthermore, as seen, the defendant did not formulate his claim until well after the time when he refused to deliver up the speedcar, and nor had the plaintiff the particulars which would have enabled him to calculate such a claim. (cf Albermarle Supply Company Limited v Hind & Co [1927] All ER 401, 406; Weeks v Henry Goode & Anor (1959) 6 C.B.(N.S.) 367). Even when the solicitor’s letter, D5, was sent on 15 May 2001, rather than claiming a lien, the assertions on behalf of the defendant were of “an interest in the engine and the rest of the car”, ownership of a number of parts installed in the car and that it would be “unconscionable for [the plaintiff] to assert his position as exclusive owner without debt over the vehicle”. Thus the defendant may well have waived any lien that he originally held: Boardman v Sill (1808) 170 ER 1003.
I find therefore that the defendant’s retention of the speedcar was wrongful. His claim for storage fees in relation to it necessarily fails.
For the reasons already given I reject the defendant’s claim that he is entitled to claim for his labour on the speedcar. As seen, the arrangement between the parties was that the defendant’s labour would be provided for no charge. While the arrangements were marked by several hiccups, essentially each of the three men played his part during the season. Consequently there can be no valid claim for that labour, either on the basis of contract, quantum merit or unjust enrichment.
Similarly I reject the defendant’s claim that he is entitled to charge a mark-up or premium on the parts supplied by him. There was never any discussion of such a mark-up and nor could it be seen to be implicit in the arrangements. On the contrary, the plaintiff would have had every reason to expect that parts would be supplied at cost price.
The relief sought by the plaintiff includes a declaration that the plaintiff is the legal owner of the property and an order for the return of the property or alternatively payment of its assessed value. Plainly the plaintiff is the legal owner of the speedcar. There is no argument against the return of the speedcar to the plaintiff. That being the case it is unnecessary to deal with that evidence which was adduced on both sides in an attempt to establish the value of the vehicle, and which, incidentally, tended to confine its value to within a range between $25,000-38,000.
Whilst the plaintiff claimed in the pleadings that in being deprived of the use of the vehicle he lost the chance of deriving prize money from it, counsel for the plaintiff, Mr Swan, frankly conceded that his client could not show a commercial loss. The costs of racing the vehicle exceeded prize money even during relatively successful periods.
However, the plaintiff does seek exemplary damages. He relied on what was said to be contumelious disregard for the plaintiff’s position from the time when the plaintiff originally sought to recover the car up to and including the defendant’s conduct at trial. In particular, Mr Swan pointed to the extravagant claims for labour and parts made by the defendant, his unsupportable claim for storage fees, the defendant’s attack on the plaintiff’s attitude to meeting his financial commitments, assertions about the quality of the plaintiff’s work as a tradesman, his supposedly high-handed conduct with Mr Haydon, extending to threatening him, and the defendant’s conduct in moving the car from his premises contrary to the order made in this court.
Mr Swan referred to the distinction between aggravated and exemplary damages and to Uren v John Fairfax & Sons Pty Limited (1967-68) 117 CLR 118 and Gray v Motor Accident Commission (1998) 73 ALJR 45. He submitted that because the plaintiff could not show a commercial loss in not having had use of the speedcar – which the defendant plainly anticipated – only an award of exemplary damages could redress the situation.
I am left in doubt that the actions of the defendant, though in many respects unfortunate, render him liable to such an award. Although I find that the manner in which the defendant acted in the early stages of the dispute and his conduct in defending the plaintiff’s suit and in prosecuting his own was in many respects reckless, he did have legal advice throughout and, as I have found, the plaintiff had not promptly met all his financial commitments as he should have, and so the defendant was at least motivated by a genuine grievance. This is not, in my judgment, a situation calling for “curial disapprobation addressed not only to the tortfeasor but to the world” (Gray v Motor Accident Commission at 61 per Kirby J).
The only other relief sought by the plaintiff arose from alleged breaches by the defendant of the Fair Trading Act 1987. Those claims rest on assertions as to the nature of the agreements between the plaintiff and the defendant, which I have not found to be wholly accurate. I have already outlined what I find was the agreement between the parties as to responsibility for expenses and for work done on the speedcar. As I interpret it, the plaintiff’s resort to the Fair Trading Act is designed to ward off any responsibility he might otherwise have for work done by the defendant and others on the speedcar. Mr Swan did not press this particular line of argument. In any event I find its essential factual basis is not made out. The same situation pertains with the plaintiff’s assertion – made in the pleadings but not pressed by counsel – that the defendant’s conduct was unconscionable and that the defendant was thereby estopped from recovering against the plaintiff.
There will be judgment for the plaintiff upon his claim and I make the following orders:
1.I declare that the plaintiff is the legal owner of the speedcar SA Reg No 3 and was at all relevant times entitled to immediate possession of it;
2.I direct that Robert Sincock deliver up possession of the speedcar to the plaintiff immediately upon the plaintiff’s request;
3.I direct that the defendant deliver to the plaintiff at a time, date and location nominated to the defendant’s solicitors by the plaintiff the items listed in Annexure 1 of these reasons.
There will be judgment for the defendant upon his counterclaim in the sum of $2,211.
I shall hear counsel as to any consequential orders, interest and costs.
ANNEXURE 1
1
electric winch
3
front radius rods (complete)
1
Winters brake clamp
2
aluminium body panels
1
Fontana cam
4
used pistons
8
used valve springs
1
power steering reservoir
2
bare front axles
1
tyre tape
1
Jack
2
air cleaners
1
high speed pill box
6
shock absorber mounts
1
½ - ¾ Sidchrome adaptor
1
used rocker shaft
1
power steering pump
1
aluminium filter neck
1
pop rivet gun
4
pit crew shirts
1
1
0