Nadalini v RJW Developments Pty Ltd
[2012] QCAT 78
•28 February 2012
| CITATION: | Nadalini v RJW Developments Pty Ltd [2012] QCAT 78 |
| PARTIES: | Mr Daniel Nadalini (Applicant) |
| v | |
| RJW Developments Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDO685-11 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 11 January 2012 |
| HEARD AT: | Southport |
| DECISION OF: | Christine Trueman, Adjudicator |
| DELIVERED ON: | 28 February 2012 |
| DELIVERED AT: | Southport |
ORDERS MADE: | 1. That the claim is dismissed. 2. That in relation to the Counter claim filed by the Respondent against the Applicant it is ordered that the Applicant pay to the Respondent the sum of $8,515.23 within fourteen (14) days. |
| CATCHWORDS: | Breach of Contract – Contract between the parties for the purchase of Jet Skis, Trailer and a Boat from the United States of America to Australia – applicant alleges oral terms to be included to written contract – applicant alleges overpayment of contract price and seeks reimbursement – respondent counter-claims for outstanding monies owed pursuant to the contract |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Daniel Nadalini |
| RESPONDENT: | Mr Ron Woodleigh |
REASONS FOR DECISION
The Applicant (“Mr Nadalini”) entered into two Agreements of Understanding with the Director of the Respondent Company (Mr Woodleigh”) to negotiate the purchase, survey report and shipping of 2x 08 Sea-Doo Jet Skis and a Dual x Single Axle trailer from the United States of America (“USA”) on or around May 2010 and an agreement dated 18 January 2010 to negotiate the purchase, survey report and shipping of a 2005 Larson 33ft Cruiser from the USA to Australia.
As the contract for the purchase of the jet skis did not proceed, the only contract considered for this matter was the contract for the purchase of the Larson Cruiser dated 18/1/2010.
Mr Nadalini alleges that in May 2010 he gave Mr Woodleigh a sum of $10,000.00 as a deposit for the purchase of two Jet Ski’s from the USA. The events leading to and surrounding this dispute are complicated. The purchase of the jet skis did not proceed and Mr Nadalini claimed the monies he paid as a deposit have not been returned to him. He claims that Mr Woodleigh also sold a trailer that he purchased on his behalf in October 2010 and those funds have not been paid to him either. The calculation of the amount to be paid to Mr Nadalini are complicated by the fact that he stated that the return of money to him is to take into account the sale price of the trailer, less the purchase price, and then any profit was then to be divided equally between the parties.
Mr Nadalini claims that in a letter dated 5 January 2011 Mr Woodleigh acknowledged that he owed him the sum of $18,427.50. Mr Nadalini claims that he has received payments from Mr Woodleigh on 18 February 2011 of $5,000.00 and a further payment on 9 May 2011 of $6,000.00 and that there was a verbal agreement that Mr Woodleigh would pay interest of $1,000. Mr Nadalini claims that the amount outstanding is the balance of $8,427.50 and that is the amount of the claim he filed on 28 June 2011 against Mr Woodleigh.
Mr Woodleigh filed a response on 10 August 2011 and claims that Mr Nadalini owes him the sum of $1,099.65 and costs and sought orders from the tribunal that Mr Nadalini “refrain from the deceit demonstrated”. He also claims that the reason that he does not owe any money to Mr Nadalini for the trailer is that the trailer was purchased by him to save massive shipping costs for Mr Nadalini and that Mr Nadalini is wrong in assuming that he had paid for the cost for the trailer. Mr Woodleigh stated that he did return the deposit money for the jet skis but claims that the amount of money paid by Mr Nadalini falls short of the total costs pursuant to the contract for Mr Woodleigh to negotiate the purchase, survey report and shipping of the Larson Cruiser from the USA to Australia.
Mr Woodleigh claims that he initially miscalculated the costs associated with the importation of the vessel and agrees he did email Mr Nadalini that he would reimburse him some funds. He states that after having carefully calculated all the costs incurred by his company on behalf of Mr Nadalini that he realised that Mr Nadalini in fact still owed him monies relating to the purchase of the vessel. He claims that he did not pursue those funds owed to him as he suggested it was as an act of good faith and because he wanted to foster an ongoing business and working relationship with him. Mr Woodleigh claims that as a result of this claim now brought against him for payment of monies allegedly owed to Mr Nadalini he now exercises his rights to seek payment of all monies owed by Mr Nadalini to him for all costs relating to the purchase of the vessel pursuant to the contract.
At the hearing Mr Woodleigh revised the sum he sought from Mr Nadalini in his counter claim and provided a summary[i] that calculated the amount outstanding and owed to him was $11,351.26.
At the conclusion of the hearing on 11 January 2011 it was ordered as follows:
1.That the decision is reserved
2.That the Respondent must make, file and serve on or before 27 January 2012 any invoices, receipts, statements and proof of payments made on behalf of the Applicant for the purchase of his boat and trailer.
3.That the Applicant be at liberty to file a response to the further evidence to be filed referred to in Order 2 herein on or before fourteen days from the date of being served with such documents and must serve a copy of such Response on the Respondent.
Mr Woodleigh filed further material pursuant to the order 2 made on 11/1/2011 and such evidence has been taken into account. Mr Nadalini filed a response to the further evidence and material filed in response pursuant to order 3 and that has been taken into account.
The Evidence
Both parties provided voluminous and detailed evidence to support their claims. Mr Nadalini prepared a response summary[ii] to the counter claim against him. He stated that the spread sheet prepared by Mr Woodleigh relating to the alleged charges for the costs pursuant to the contract were incorrect, for many reasons including payments alleged without invoice or evidence of such costs, costs incorrectly charged as GST and Australian import fees and not jet ski deposit, costs that were miscalculated, costs included that were paid directly by Mr Nadalini, a doubling up of some costs, costs higher than invoiced or previously advised, government taxes and costs not previously disclosed, storage fees that were not agreed as costs to be borne by Mr Nadalini, boat repair costs that were not agreed and additional transportation costs in the USA that were disputed.
Mr Nadalini relied upon email communications between the parties as proof that he had paid for the trailer and Mr Woodleigh agreed to refund all monies to him. An email of 8 March 2010[iii] from Mr Woodleigh to Mr Nadalini attached an “Import Summary” and advised that the “trailer unfortunately cost us $900 more” and included in the “final summary”. The email states that Mr Nadalini owed Mr Woodleigh “the difference you owe me on my Card expenses is AU$2287.71 as set out.” It further states that “the ship has sailed and on its way and I hope to have some photos for you later this week.” An email on 14 October 2010 from Mr Nadalini to Mr Woodleigh requested a “trailer/summary costs/returns as discussed yesterday” and attached to the claim was a copy of a summary. The summary was prepared by Mr Nadalini and suggests trailer costs and expenses and refers to deductions of payments by “Danny” which he claims he paid and proves that he paid for such trailer costs. The summary documents show a balance owing of $8,427.50 which is the sum sought by Mr Nadalini from Mr Woodleigh.
Mr Nadalini produced a letter dated 5 January 2011 from Mr Woodleigh acknowledging that $10,000 was to be returned to him for the cancellation of the jet ski purchase from the USA. The letter also states “there is a further sum of $8427.50 payable for the sale of 1 Alum Tandem Axle Trailer with the total amount owing being $18,427.50...payment will be made direct to your St George Bank Account as supplied by you to the Company by Thursday January 13th 2011”.
Mr Nadalini stated that he sent letters of demand to Mr Woodleigh, and one dated 28 April 2011 was produced to the tribunal. An email dated 3 May 2011 from Mr Woodleigh confirms a payment of $6,000.00 to Mr Nadalini and reference to awaiting clearance of other funds to make further payments. An email was sent by Mr Nadalini to Mr Woodleigh on 26 May 2011 and 9 June 2011 enquiring when the further payment would be made and requesting “payment of $8430.00 forthwith”. Mr Woodleigh emailed Mr Nadalini on 25 May 2011 advising that he had transferred monies to his account and the sum of $7,430.00 and apologising for the delay. The email refers to other matters including the arrangement of Mr Woodleigh and painting of Mr Nadalini’s boat and other matters not relevant to these proceedings.
Mr Nadalini relied upon the Application to Import a Small Road Trailer document[iv] dated 21/4/2010 as proof of ownership and that he had paid for the trailer. Mr Nadalini stated that if he did not pay for and own the trailer that Mr Woodleigh would not have permitted the trailer to be registered in his wife’s name. The Import Approval document with Approval Number 113300/1 from the Department of Infrastructure, Transport, Regional Development and Local Government notes that Mrs Carolyn Denise Nadalini was the applicant to import the trailer into Australia.
Mr Woodleigh gave evidence that Mr Nadalini was pressuring him and harassing him in relation to the reimbursement of the jet ski and trailer funds. He stated that during the time of the various emails whereby he agreed to reimburse certain funds to Mr Nadalini he had not received all of the costs relating to Mr Nadalini’s vessel nor had he reconciled what the actual costs were relating to the Larson vessel. Mr Woodleigh stated that the letter of 5 January 2011 was not written by him, he stated that his secretary wrote the letter and he did not really read the content of that letter, he said he signed it as he trusted his secretary as “she did all the office work and paid all the bills” and that she sent a lot of the correspondence to Mr Nadalini in relation to this matter.
Mr Woodleigh stated that he got his figures wrong and that when he finally realised he had paid for the trailer himself and reconciled the actual vessel costs for Mr Nagalini was in about May or June 2011. Mr Woodleigh stated that the email of 13 June 2011[v] when he realised his mistake and discrepancy in the amounts he had paid on behalf of Mr Nadalini for the importation of his vessel he wrote to him. The email states that:
“in all you [sic] actions in seeking moneys [sic] from the company you in fact owe the company a considerable amount of money which has been set out in an enclosed spread sheet and attached to this email…you have been aware since mid last years 2010 of the costs to import your 33ft Larson Cruiser as final details were personally given to you of the amount owing and you can no longer hide this from your wife, as you have stated in the past.”
The email further states that:
“under the terms of the Agreement with the Company you undertook to pay all these costs, and further the Company Principal saved you from loosing you [sic] money with the purchase as it was recommended to use the Companies contacts in the United States to carry out a complete Title Search which discovered a BANK LEIN on the vessel, it was further carried out by the principal of the Company in negotiating a much better purchase price for you from US$67,000(which I note you were happy to pay) down to US$55,000. Further hold-ups were encountered when you then decided to change the Title of the Vessel and Trailer to your Wife’s name for the purposes of Tax…… we now demand settlement forthwith, failure to do so will instigate immediate Legal action against you… for recovery of our out of pocket funds.”
Mr Woodleigh provided a Statutory Declaration to the tribunal of Mrs Carolyn Alison Chriss declared on 11 January 2012.[vi] She said she was the Secretary of RJW Developments at the time of the dealings with Mr Nadalini. She provided evidence relating to the difficulties with the importation of the trailer and the need to change to name to Mr Nadalini’s wife’s name to expedite matters. She claims that a saving was made by Mr Woodleigh in negotiating a saving on the purchase price of some $13,000.00 and that he sorted out ownership problems with the boat in the USA for Mr Nadalini. She also stated that there was a problem with the refrigeration and air conditioning import approval and claimed that Mr Woodleigh arranged and paid for the gas import approval in Canberra on behalf of Mr Nadalini. Mrs Chriss stated that she also facilitated the drawing up of paperwork and documents to arrange the trailer transfer to Mrs Nadalini and she personally delivered papers to the Nagalinis’ home, to Mrs Nagalini’s place of employment and that it was arranged for Mr Nadalini’s vessel to be moved from the Bond Store and moved to another location to assist Mr Nadalini with storage costs in Brisbane. She stated the vessel was eventually moved from the bond store to their yard where it was stored until the vessel could be launched.
Mr Woodleigh stated that it was agreed that the boat and trailer were to be initially in the name of the company. He said that Mr Nadalini changed his mind and wanted the boat and trailer purchased in his wife’s name for “tax reasons”. He said that it was agreed to purchase a trailer to reduce transportation costs. Mr Woodleigh stated the reduction in transportation costs resulted from not requiring to lift the boat on and off a cradle and the extra costs of cranes, the cost of actual cradle or rack expenses and that the trailer made transportation easier as the vessel could be towed on and off the ship. He said it also provided better protection for the vessel. He said he arranged to have the trailer custom built to fit this particular vessel with “his contacts in the USA” and they built it in a period of six days. He said that by initially outlaying for the cost of the trailer that the trailer would be sold in Australia, and the difference was the only real cost and that this saved Mr Nadalini many thousands of dollars in transportation costs.
Mr Woodleigh stated that as he had not actually reconciled the accounts of the vessel costs he thought that Mr Nadalini had paid for the trailer but upon reconciling those costs he discovered that he in fact himself had paid for the purchase of the trailer. He stated that he agreed to arrange the trailer to be transferred into Mrs Nadalini’s name without any recourse to ownership but did so to expedite the importation process and to make it easier, quicker and less costly for Mr Nadalini. Mr Woodleigh said he was conscious of any delays in importing the vessel and knew that storage costs could quickly blow out and were a direct cost to Mr Nadalini. Mr Woodleigh stated that it was always the parties agreed position to sell the trailer and recover the costs anyway and that ownership or whose name the trailer was registered in was of little consequence.
Mr Woodleigh stated that once he was served with this claim he prepared a further summary to reconcile what the actual amount was that Mr Nadalini owed him for the vessel costs. The final summary[vii] he prepared was provided to the tribunal and included the following costs:
1. Consultancy Fees $5,000.00
2. USA Title Search (trailer) $763.00
3. US Inland Transport costs $2,043.75
4. Shrink-Wrap (to Aust) $490.50
5. US Shipping (Savannah to Bris) $25,228.05
6. Sea Trial costs (Skinnys Marine) $588.60
7. Trailer purchase $6,248.48
8. Dept Environment (Gas Licence) $400.18
9 Import GST@10% $8,480.30
10. Import Fee (Raitt Int fees) $6,557.04
11 Trailer Compliance fee $50.00
12 Trailer repairs (lights/wiring) $132.00
13. Trailer repairs (axle spindle) $140.00
14 Local transport (Bris port-A’more) $350.00
15 Transport (Ashmore-S’port) $150.00
16. Boat repairs (Duo-Props) $65.00
17 Boat Detailing $360.00
18 US Boat Service (Skinnys Marina) $2,287.71
Mr Woodleigh provided in his summary the total amounts paid by Mr Nadalini as the following:
(a) Consultancy paid on 15/1/2010 $5,000.00
(b) Shipping/Duties/taxes $2,287.71
(c) Jet Ski Deposit $10,929.64
(d) Shipping US Transport costs Duties/Tax $30,129.00
Mr Woodleigh provided a copy of the invoice from Loadmaster Aluminium Boat Trailers, in Florida dated 26/2/2010[viii] for the purchase of the trailer. The purchase price was US$5,599.00. Mr Woodleigh provided evidence that payment was made on 26/2/2010 and that the relevant exchange rate for Australian dollars for 26/2/2010 was 1.11688 ensuring a purchase price in Australian dollars of $6,248.48.
Mr Nadilini did not challenge the sale price of the trailer and in his evidence he appears to accept the evidence of Mr Woodleigh that the trailer was sold for an amount of $10,637.00.[ix] Mr Nadalini has calculated his claim based on the sum proposed by Mr Woodleigh for the sale price of the trailer.
Mr Woodleigh gave evidence that he advised Mr Nadalini that the purchase of the trailer would save on transportation costs and on this advice it was agreed to purchase the trailer. Mr Nadalini disagreed with Mr Woodleigh that by purchasing the trailer had saved on transportation costs. Mr Woodleigh provided an email dated 5 January 2010[x] supporting his proposition. That email refers to providing an estimate on shipping costs and it states that Mr Woodleigh had “calculated it on purchase of a Trailer to put under it as it would be equal in Road Transport cost and you would have the advantage of re-cooping on the trailer in Australia”.
Mr Woodleigh estimates in his summary that the amount of expenses incurred by him is $67,576.74 and the payments made by Mr Nadalini total $56,225.48 therefore the difference owed by Mr Nadalini to him is $11,351.26.
Mr Nadalini said that he agreed with the sums that he had paid but disputed that the sums that he paid were attributed to the relevant accounts. He stated that by way of example was the alleged payment of jet ski deposit of $10,929.64 was not for the jet skis but was for payment of the GST and Australian import fees. He said that the jet ski deposit was $10,000.00. He agreed that payments of $5,000 and $6,000 had been paid to him by Mr Woodleigh including the jet ski deposit.
Mr Nadalini disputed some of the expenses and in particular referred to the storage costs charged to him. He said those costs were not itemised in the summary prepared by Mr Woodleigh and that he disputed those costs. He referred to the evidence provided to the tribunal of an invoice that listed storage costs. A copy of the invoice paid by Mr Woodleigh from Raitt International Freight Pty Ltd[xi] dated 23 April 2010 in the sum of $15,037.34 was provided to the tribunal. The invoice referred to storage costs of $3,529.76. Mr Nadalini claims that he should not be liable for such storage costs as they were escalated by delays and by Mr Woodleigh not arranging in a timely manner the import and clearance of the trailer and the change to his wife’s name. He said he gave Mr Woodleigh ample notice of such change of name and that his failure to attend to it caused delays and meant the vessel was in storage at the Brisbane port longer than necessary. Further, Mr Nadalini stated that Mr Woodleigh gave him a verbal assurance that he would pay for those storage costs and that Mr Nadalini would not have to pay them.
Mr Woodleigh stated that he did not agree to pay for the storage costs, and that the delay in having the trailer approved through customs was a direct result of Mr Nadalini changing his mind to have the trailer transferred to his wife’s name and not in the name of his company. Mr Woodleigh stated that he was not fully to blame for the delays and the storage costs. Mr Woodleigh said that the cost for storage was for approximately one month of storage fees. Mr Woodleigh stated that when the vessel was due to be cleared from customs that the vessel was “OK” but that the trailer was a problem as it was in the name of RJW Developments Pty Ltd. He said that the trailer was purchased on 26/2/2010 and the purchase order was dated 19/3/2010, and the form of transfer for the registration was completed on 21/4/2010. The vessel arrived in Brisbane on or around 25/4/2010. The Import approval[xii] for the trailer was granted on 21 May 2010.
Mr Woodleigh stated that the registration name change was not the only reason for the delay and that there had been recent changes to the air conditioning units rules relating to the importation of boats. Mr Woodleigh said he had to arrange for approval and completed an Application for a Pre-Charged Equipment Licence for the vessel, and that he had to arrange for Mrs Nadalini to sign and lodge the application. A copy of the Application[xiii] relating to the refrigeration issue was provided to the tribunal advising that the equipment being imported was on 16/4/2010 and indicating the requisite fee payable of $400.18.
Mr Nadalini stated that he disputed some other costs relating to alleged costs and charges that were listed in the summary where no invoice or proof had been provided to him that Mr Woodleigh had paid those amounts on his behalf.
Mr Woodleigh disputes that Mr Nadalini was not aware of the total costs accumulating for the importation of his vessel and stated that he sent Mr Nadalini an email[xiv] on 8/3/2010 to him providing a summary of costs including the total cost of the vessel and purchase price for the boat which was, at that stage, some $109,400.96.
Disputed Facts
The facts that are disputed between the parties are that each party alleges that they each paid for the trailer. Mr Nadalini did not pay monies to Mr Woodleigh specifically for the trailer purchase. He paid various amounts of payments to Mr Woodleigh for various costs and he paid the owner of the boat in Florida directly for the purchase of the vessel.
The parties do not agree on the costs that were incurred and paid for by Mr Woodleigh in relation to the importation of the vessel from the USA to Australia.
The parties do not agree on liability for the storage costs of the vessel and trailer at the Brisbane port, such costs reflected in the tax invoice and allegedly paid by Mr Woodleigh in the sum of $3,529.76.
Agreed Facts
The agreed facts are that Mr Nadalini found a boat on ebay for sale that he liked. The vessel was a 2005 Larson 33 foot vessel located in Florida in the USA. The ebay listing was provided and indicated the selling price of US$61,000.00.[xv] Mr Woodleigh advised Mr Nadalini not to purchase the boat directly unless the appropriate searches and survey were performed on the vessel. Mr Nadalini contracted with Mr Woodleigh on 18/1/2010 by signing an Agreement of Understanding between RJW Developments Pty Ltd and Daniel Nadalini. The agreement provided that:
“1.The client requires the Consultant to negotiate the purchase, Survey Report and shipping of a 2005 Larson 33ft Cruiser from the United States to Australia.(HIN No: LAR77193L405 (hereafter called the “vessel”)).
2.Sea trials and full inspection of the vessel is to be carried out by the Consultants associates in the United States with a full written report of the condition of the vessel, at a cost to the client that is fair and reasonable to the client.
3.The Consultants will arrange and handle all United States Transportation and Sea Freight shipping of the vessel to the Port of Brisbane Australia at a fair and reasonable cost to the Client.
4.The consultants will ensure that the vessel movement complies with the clients insured so as not to hinder any claim for damage to the vessel whilst being transported from the United States to Australia.
5.The Client agrees under this agreement to pay to the Consultants the sum of AU$5,000.00 for the Consultants services.
6.The client agrees under this agreement to pay the Consultants the quoted and agreed Transportation and Shipping costs for the transport and shipping of the vessel to Australia.
7.The Consultants will use it [sic] best endeavours to ensure, under the direction of the client that all monies paid to the seller of the vessel are paid to the appropriate parties to allow the client clear and full title to the vessel prior to the vessel leaving the United States.”
The agreement sets out each of the consultants and clients responsibilities pursuant to the agreement.
It is agreed that Mr Nadalini paid the sum of AU$55,000.00 for the vessel, transferred funds to the USA broker who paid the seller of the vessel directly on or around early January 2010.
It was agreed that after the trailer was made in the USA and paid for, it would transport the vessel to Australia and that the trailer would be sold. It was agreed that any profit from the sale of the trailer would be divided equally between the parties.
It is agreed that the trailer was registered in Mrs Nadalini’s name for the purpose to make it easier to import it into Australia and pass through and get clearance from customs and to expedite matters.
The parties agree that the total amounts paid by Mr Nadalini are the amounts of $30,129.00, $2,287.71 and $10,929.64 for the importation costs of the vessel, $5,000.00 for consultancy fees and $10,000.00 for the jet ski deposit. The total sum paid by Mr Nadalini was $58,346.35. It is agreed that Mr Woodleigh has paid for expenses for the importation of Mr Nadalini, which are not agreed, but it is agreed that he has repaid to Mr Nadalini the sum of $11,000.00.
Mr Woodleigh filed further evidence with the tribunal pursuant to Order 2 made on 11/1/2012. The evidence filed on 23/1/2012 included an updated summary of the amounts paid by Mr Woodleigh on behalf of Mr Nadalini for the importation costs and invoices from Carex Shipping for shipping costs, bank statements relating to the proof of payment of the import licence, a Raitt International Invoice and proof of payment, invoices for repairs to the vessel at RJW Developments including storage and repairs to the trailer, transport costs from Brisbane to Ashmore and Southport, proof of payments to Skinny’s Marine Mart in Florida USA, including Invoices and proof of payment relating to the sale price of the trailer to Hi-Way Truck & Tractor. That evidence has been taken into account in determining this matter.
Mr Nadalini filed further evidence on 13/2/2012 in response to the evidence filed by Mr Woodleigh and also fresh evidence relating to his claim. The only evidence that was taken into account was the evidence filed in response to Mr Woodleigh’s further evidence, as leave was not granted to the filing of fresh evidence. Mr Nadalini alleges that Mr Woodleigh has not paid for the shipping costs as alleged at the hearing. He filed evidence that indicated the “Carex” invoice remained unpaid. He alleges that he contacted Mr Mike Sekirin, the President of Carex Shipping who advised him that they had instructed a “law firm in Australia” to recover the unpaid shipping costs.
Mr Nagalini claims that the invoice from “Loadmaster trailers” in the USA relating to the purchase of the trailer is “fabricated by Mr Woodleigh” as the invoice had been changed from the name of Mr Woodleigh’s company to Mrs Nadalini’s wife’s name. He provided an email relating to the Invoice from Loadmaster Trailers which claims that the original invoice was in Mr Woodleigh’s company name. He states that the trailer had to be changed into Mr Nadalinis’ wife’s name to speed up the permit application. He said that was untrue and an excuse made by Mr Woodleigh for his failure to attend to the paperwork in a timely manner, which caused delays resulting in excessive storage costs for Mr Nadalini. Mr Nadalini alleges that he should not have to pay for the storage costs as by Mr Woodleigh’s failure to arrange for the trailer to be cleared from customs in a timely manner which caused the storage costs to escalate to an excessive amount.
Mr Nadalini claims that he should not be liable for further transportation costs from the Brisbane port to Southport and should not pay the tax invoices raised by Mr Woodleigh’s company RJW Developments Pty Ltd. Mr Nadalini claims he should not have to pay them based on the fact that the invoices were not presented to him earlier, and were not raised until these proceedings were commenced. He alleges that the invoices were “fabricated” and were prepared to “take the focus away from the money he owes”.
Findings
I find that the fact as to who actually paid for the trailer or not is not a matter I am required to determine. In this case the issue is merely a calculation of the amount of monies paid for by Mr Woodleigh on Mr Nadalini’s behalf for the importation of the vessel less any money paid by Mr Nagalini. This matter is not a case requiring determination in relation to just the trailer. The only relevant criteria for assessing the trailer is findings of fact relating to the cost it was purchased for, the amount it sold for and the requisite calculated profit made on the sale, that is to be equally divided between the parties.
The decision I am being requested to determine is the reasonableness of the costs incurred by Mr Woodleigh on behalf of Mr Nagalini for the importation of the vessel. Mr Nagalini alleges that some of the costs are not reasonable and he should not pay for them, like the storage costs and that other costs that Mr Woodleigh demanded he be reimbursed for should not be paid if they cannot be proven or evidenced with an invoice or proof of payment. Mr Nagalini claims that if the evidence is not forthcoming by Mr Woodleigh for any sum he allegedly paid, then he should not have to pay him.
The assertion made by Mr Nadalini that Mr Woodleigh has not paid the Carex shipping invoice is in my view irrelevant. Mr Woodleigh engaged Carex Shipping to transport the vessel from the USA to Australia and is liable for such payment, whether he has paid the invoice or not is not determinative of his liability to the shipping company.
Mr Nadalini asserts and makes much about the fact that Mr Woodleigh allegedly “fabricated” the invoice for the trailer, as it had been changed from the name of Mr Woodleigh’s company to Mrs Nadalini’s wife’s name. Mr Nadalini provided an email relating to the Invoice from Loadmaster Trailers which claims that the original invoice was in Mr Woodleigh’s company name. The point raised by Mr Nadalini is irrelevant as it is not disputed as to the amount paid for the trailer. The actual name on the invoice has no bearing on this case and it may be that Mr Woodleigh merely requested an invoice originally in his company name as he was purchasing the trailer and when the trailer was to then be registered in Mr Nadalini’s wife’s name he requested an amended invoice. Nothing turns on this point and it has not been considered. The only evidence relevant to the invoice is the amount paid for the trailer. Mr Nadalini’s reference to the invoice change of name to that of his wife does not of itself prove ownership or that he paid for the trailer.
I do not agree with Mr Nadalini’s evidence that the letter from Mr Woodleigh to him on 5 January 2011 is proof that he agrees and acknowledges that Mr Woodleigh was indebted to him. I accept the evidence of Mr Woodleigh that Mrs Chriss, his secretary, prepared that letter and that it was written prior to a full reconciliation being prepared considering the payments made by Mr Woodleigh and the money he had received from Mr Nadalini.
I find that Mr Nadalini has paid the sum of $53,346.35 to Mr Woodleigh for the importation of his vessel from Florida in the USA to Brisbane in Australia and the sum for the jet ski deposit.
I take into account that Mr Nadalini paid to Mr Woodleigh a further sum of $5,000.00 for consultancy fees and that has been precluded from my calculations.
I find that the storage costs were not incurred as a direct result of any negligent act or failings on the part of Mr Woodleigh. I find that Mr Nagalini would have been required to pay some storage costs in any event and that while the storage time and costs were more than he expected, and the vessel was stored longer than necessary, I find that the extra storage costs were not directly or negligently caused by Mr Woodleigh. I find that other reasons caused the delays in clearing the trailer from customs and there were other matters that required the vessel to be stored longer than expected; including issues of change of name for registration purposes and the problems associated with the refrigeration and air conditioner import approval and changes to the import regulations. I find that Mr Woodleigh was required to apply for a re-charged equipment licence relating to the refrigeration and air conditioner unit on the boat and paid an application fee of $400.18 for such application. I accept his evidence in that regard and the evidence of Mrs Chriss, who corroborated his evidence. She deposed that changes to the import regulations relating to the gas in the refrigerator and air conditioner had occurred after the vessel had left the USA and that Mr Woodleigh had to get “approval from Canberra.. and paid $400 for the approval”.
I find that the agreement that was executed by the parties provides that Mr Nadalini would pay Mr Woodleigh all quoted and agreed transportation and shipping costs for the transport and shipping of the vessel to Australia. I am satisfied that the importation costs were reasonably incurred by Mr Woodleigh on behalf of Mr Nadalini. I find that Mr Nagalini is liable for the storage costs of the vessel at the Brisbane port. I find that Mr Woodleigh in fact saved Mr Nadalini many thousands of dollars in acting as his consultant.
I find on the evidence that Mr Woodleigh managed to negotiate the price for the vessel from the advertised price of US$61,000.00 to AU$55,000.00 and saved more than AU$10,000.00 in the purchase price alone. I find that Mr Woodleigh also saved Mr Nadalini many thousands of dollars in transportation costs. I accept his evidence that the cost of transportation alone could have been around $6,000.00 and for the same cost that the purchase of the trailer would render an asset to sell once the boat arrived in Australia. These savings can be seen in light of the fact that, on the evidence, a finding that the actual cost of the purchase of the trailer in the USA was US$5,599.00 which equated to AU$6,248.48 compared to the price that Mr Woodleigh sold the trailer for of AU$10,637.00 actually created a profit for the parties of $4,388.52. I find that Mr Woodleigh actually saved transportation costs of $6,000 for Mr Nadalini and in addition created a direct profit to him (being one half of such profit) of $2,194.26.
I find that in March 2010 Mr Woodleigh advised Mr Nadalini that the cost of the vessel was at that time around $109,400.96. In fact the final costing of the $55,000.00 purchase price plus commission and the additional payment made to date by Mr Nadalini of $43,346.35 to be $103,346.35 which is close to that sum advised by Mr Woodleigh. Mr Woodleigh alleges that Mr Nadalini had the costing summary prior to the vessel arriving in Australia yet further costs of storage and other charges including incidentals and repairs were yet to be determined and would have been required to be paid. Mr Nadalini alleges that he was never informed of the costs and now disputes them.
I find that Mr Nagalini did have notice of the costing for the vessel as early as 8/3/2010 as a summary of costs were forwarded to him in an email on that date. Taking into account the costs conveyed to Mr Nadalini at the time, plus the additional storage costs, it is obvious that Mr Nadalini knew that the total cost of his vessel was going to be more than $109,000.00. I find that as at 8/3/2010 Mr Nadalini had only paid a total amount of $92,416.71 yet had been advised by Mr Woodleigh the costs to that date were already $109,400.96. I cannot determine why Mr Nadalini did not dispute and challenge those costs at the time he was advised of what the vessel had cost as at 8/3/2010. I find that at the time he did not dispute the costs and it is only now that the issue of the jet ski deposit was disputed and allegations that he had paid for the trailer that he is now claiming that the importation costs are unreasonable, without foundation and that he has been overcharged on some importation items.
I find that the email of 8 March 2010 sent by Mr Woodleigh to Mr Nadalini relating to the vessel costing estimated then at $109,400.96 was not challenged or disputed by Mr Nadalini. No evidence was produced to the tribunal that Mr Nadalini at that time questioned or challenged the estimation of those costs to date. I find that the vessel did not arrive in Brisbane port until mid April 2010 so that storage and other charges had not been known at that stage. Mr Nadalini emailed Mr Woodleigh on 19 October 2010 relating to the outstanding payment for the jet ski deposit and relating to final payments and invoices. The email does not refer to any discrepancy or dispute with the costs as advised in the email of 8/3/2010 which would have remained unpaid. Mr Nadalini was requesting his jet ski deposit be refunded when it appears that at that time he was still indebted to Mr Woodleigh for further payments relating to the importation of his vessel.
Mr Nadalini gave evidence that he had paid over $100,000.00 for the vessel. He said that the costs were excessive and he appeared to be unhappy with the total cost he had paid for the vessel. He said that he paid AU$55,000.00 for the vessel in the USA and that he has paid over AU$50,000 for importation and transportation fees and other costs. He appeared to be disgruntled at the final costing for the vessel. It may have been that Mr Nadalini was not fully appraised as to what the actual costs were going to be for such a large vessel to be shipped from the USA to Australia. The contract he entered into with Mr Woodleigh binds him, as he has engaged Mr Woodleigh as his consultant, for him to negotiate price and arrange the transportation of the vessel to Australia and that Mr Nadalini is liable to pay for the “consultants transport and shipping fees, for the cost of any third party survey, repair costs and parts required and agreed between the parties and to ensure that all Australian Import costs are paid upon arrival in Australia”. The specific terms and conditions of the contract are clear and unequivocal. I find that there were transportation costs that were incurred on behalf of Mr Nadalini for his vessel and he is therefore liable to pay for all such costs relating to the purchase, importation and transportation cost of the vessel from USA to Australia.
Mr Nadalini alleges that he should not pay for the amount of $763.00 for a title clearance on the vessel in the USA undertaken by the agent, Ms Debbie Rich due to the fact that Mr Woodleigh could not produce any evidence of such cost. Mr Nadalini does not dispute that the title search and clearance was done, as it was agreed by both parties, that it was. Mr Woodleigh gave evidence that in fact he advised Mr Nadalini not to purchase the vessel directly from ebay but to use his agent in Florida in the USA to undertake such title search. He said the search highlighted that the vessel had a lien over it that required intervention to have it removed prior to the vessel being shipped to Australia. Mr Woodleigh gave evidence that if that title search had not been done and the lien removed, that Mr Nadalini potentially would have lost all of his money if he had paid for the vessel directly to the seller on ebay. Mr Nadalini did not state that he paid for the title search and I therefore find that Mr Woodleigh paid for it. In the absence of any evidence it is difficult to determine an amount but in this case I accept the evidence of Mr Woodleigh that the title search was performed, that he paid for it and I am satisfied that the sum of $763.00 appears to be a sum that is fair and reasonable in all the circumstances.
Mr Nadalini claims that he should not have to pay costs to Mr Woodleigh for the transportation of the vessel from the Brisbane port to the boat yard at Ashmore and then later from the boat yard to Southport nor any costs for using Mr Woodleigh’s facilities in getting his vessel ready to launch. Those costs were invoiced for various sums that included Mr Woodleigh’s expenses for two trips to the port of Brisbane to collect the boat at $350.00, transport costs for taking boat from Ashmore to water $150.00, for the storage and use of facilities at the boat yard for detailing and repairs to the vessel $360.00. Ms Carolyn Chriss deposed that Mr Nadalini and his wife, Carolyn “spent many days cleaning the boat. using our facilities, power and some equipment… Frank made a special trip to Brisbane to move Danny’s boat to the bond store and subsequently another trip to transport the boat from Bond store to our yard & then to launch the boat at Southport.. the boat was located at out yard it occupied all our parking spaces together with some of the other tenants”.
I am satisfied that Mr Woodleigh provided other transportation services to Mr Nadalini that was outside the terms and conditions of their agreement. The contract between the parties specifically provides at paragraph 1 and 3 that the services to be performed under the contract were to deliver the vessel to the “Port of Brisbane”. I find therefore that any delivery costs from the Port of Brisbane to the Gold Coast were additional services and expenses that Mr Nadalini requested Mr Woodleigh to perform. Mr Nadalini did not state that he expected that those delivery costs were agreed to be performed without charge. I accept that Mr Woodleigh might not have invoiced Mr Nadalini at the time but only after the monetary dispute arose between the parties. I find that Mr Woodleigh is entitled to be paid for those services, and as there was no evidence that the parties had agreed on any particular sum or payment, I will determine the reasonableness of those costs. It is undisputed that Mr Woodleigh or his agent went from the Gold Coast on two occasions to move the vessel and then to tow it to the Gold Coast. I take into account the time and associated costs and am satisfied that the cost of $500 is fair and reasonable in all the circumstances. In relation to the charges for storing and detailing of the vessel at the boat yard including using power, facilities and equipment, I find that the cost of $360.00 is fair and reasonable in all the circumstances. I find therefore that the invoices raised by Mr Woodleigh dated 25/10/2010 for his additional services should be paid by Mr Nadalini.
Mr Nadalini claims that there was a verbal or oral term of their agreement that Mr Woodleigh had agreed to pay interest to him of $1,000.00 due to the late reimbursement of the jet ski deposit. Mr Woodleigh disputes this contention. I find on the evidence that Mr Nadalini has not produced sufficient evidence that there was an agreed additional oral term of the contract for the payment of interest to Mr Nadilini in relation to the jet ski deposit.
In this case it is a simple matter of undertaking a mathematical calculation of all the reasonable, agreed and proven costs incurred for the importation of Mr Nadalini’s vessel less all payments made by him to Mr Woodleigh for those costs. The calculation will determine if Mr Nadalini has either overpaid or underpaid funds for the costs relating to the purchase of the vessel.
Breach of contract
On the evidence I cannot make any findings that Mr Woodleigh has breached the contract he had with Mr Nadalini for consultancy services to negotiate the purchase, survey report and shipping of his 2005 Larson 33ft Cruiser from Florida in the USA to Brisbane in Australia. I find that Mr Woodleigh fulfilled his obligations under the contract; he saved Mr Nadalini thousands of dollars in both the reduced purchase price of the vessel and in saving on transportation costs with the purchase of the trailer. I find his advice relating to conducting a title search for clear title of the vessel likely to have saved Mr Nadalini from losing the purchase price of the vessel. I find that Mr Nagalini has not actually paid for the trailer and that Mr Woodleigh has paid for it and sold it, and that he retains the sale proceeds.
Conclusion
I find that the written contract between the parties being the Agreement of Understanding signed by the parties dated 18/1/2010 binds them to the terms and conditions of that contract. I find that the contract only provides for the delivery of the vessel to Brisbane. I find that there was an oral contract between the parties for Mr Woodleigh to arrange and ensure the vessel was transported from Brisbane port to Ashmore, and then later Southport and I find that Mr Woodleigh did arrange the additional transportation of the vessel and is entitled to be paid for that. The parties did not give evidence that they had agreed to any fixed price or cost for these additional transportation costs but I find that Mr Woodleigh is entitled to be paid reasonable costs for that service. I do not find there was an agreement that Mr Woodleigh would pay $1,000.00 for interest and in fact all email communications between the parties indicates that despite Mr Nadalini requesting that interest be paid to him of $1000.00, Mr Woodleigh at no time ever agreed to such interest.
I find that the sums paid or owing by Mr Woodleigh for and on behalf of Mr Nadalini are the following:
·Trailer purchase $6,248.48
·Carex Shipping costs $25,228.05
·Import Licence $400.18
·Raitt International Freight $15,037.34
·Boat/trailer repairs/storage $697.00
·Transport costs @ Brisbane/Ashmore/Southport $500.00
·Skinnys marine Mart (18/1 incl conversion fee) $599.36
·Skinnys marine Mart (3/2 incl conv fee) $2,329.61
·Skinnys marine Mart (8/2/ incl conv fee) $1,252.87
·Title Search (USA) $763.00
$53,055.84
I find that the total sums paid or liable to Mr Woodleigh on behalf of Mr Nadalini are $53,055.84. Mr Woodleigh has overpaid the jet ski deposit by $1,000.00 and that must be taken into account. Mr Nadalini has already paid the sum of $43,346.35; therefore there is a difference of an underpayment of $9,709.49. However, the sum owed must be adjusted by the fact that Mr Nadalini is entitled to receive half of the profit from the sale of the trailer but that he has been over paid $1,000.00 from the jet ski deposit so that a further sum of $2,194.26 (profit) less $1,000.00 (overpayment) should reduce the payment required to be paid to Mr Woodleigh. I find that the final sum that Mr Woodleigh is owed is therefore $8,515.23.
I find that having considered all of the evidence of the parties, both the oral evidence and having carefully considered the content of all of the voluminous exhibits provided to the tribunal together with all evidence filed with the original claim by the Applicant and response and counter claim filed by the Respondent, that the order that I make that will give effect to the decision I have reached for the reasons I have given is as follows.
Orders
That the claim is dismissed.
That in relation to the Counter claim filed by the Respondent against the Applicant it is ordered that the Applicant pay to the Respondent the sum of $8,515.23 within fourteen (14) days.
[i] Exhibit 6.
[ii] Exhibit 11.
[iii] Exhibit 2.
[iv] Exhibit 1.
[v] Exhibit 9.
[vi] Exhibit 8.
[vii] Exhibit 6.
[viii] Exhibit 6.
[ix] Exhibit 11.
[x] Exhibit 1.
[xi] Exhibit 7.
[xii] Exhibit 1.
[xiii] Exhibit 7.
[xiv] Exhibit 2.
[xv] Exhibit 13.
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