Pix v Suncoast Marine Pty Ltd - [2018] QSC 235

SUPREME COURT OF QUEENSLAND

CITATION:

Pix v Suncoast Marine Pty Ltd [2018] QSC 235

PARTIES:

TREVOR KEITH PIX
(plaintiff)
v
SUNCOAST MARINE PTY LTD (ABN 41 091 644 101)
(first defendant)
and
MICHAEL JOHN RIDER and KATE RIDER
(second defendants)

FILE NO:

SC No 12976 of 2009

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 October 2018

DELIVERED AT:

Brisbane

HEARING DATES:

5 – 7 March 2018; 12 – 13 June 2018

JUDGE:

Holmes CJ

ORDERS:

The orders of the Court are that:

1.       The plaintiff’s claim against the first defendant is dismissed, with parties to make submissions as to costs.

2.       The plaintiff is to make further written submissions as to damages in his claim against the second defendants and any submissions as to the costs of that claim, to be filed and served by 4pm on 24 October 2018.

3.       The second defendants’ written submissions in reply are to be filed and served by 4pm on 2 November 2018.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – where the plaintiff purchased a catamaran from the second defendants – where the plaintiff claimed that the first defendant was the undisclosed principal in the sale – where the plaintiff claimed in negligence for what were said to be defects in the vessel’s paintwork, its susceptibility to water ingress and a failure to meet commercial survey standards in its building – where the plaintiff claimed in negligence against the first defendant on the basis that it had breached a duty of care owed to him as purchaser from it, or alternatively as a subsequent purchaser of the vessel, to construct it with reasonable care – where the plaintiff claimed in negligence against the second defendants on the basis that they had assumed a duty of care to him to supply a vessel constructed with reasonable care – whether the first or second defendants owed the plaintiff a duty of care – whether the alleged defects were attributable to negligence by the defendants

CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – BREACH OF CONTRACT – where the plaintiff purchased a catamaran from the second defendants – where the plaintiff claimed that the first defendant was the undisclosed principal in the sale – where the plaintiff contended that the first defendant had breached a term implied by s 71 of the Trade Practices Act 1974 (Cth) that the vessel would be of merchantable quality – where the plaintiff contended that both the first and second defendants had breached a term implied by s 17 of the Sale of Goods Act 1896 (Qld) that the vessel would be of merchantable quality – whether the defendants were in the business of dealing in goods of the vessel’s description – whether the plaintiff bought the vessel by description – whether the vessel was of merchantable quality

Sale of Goods Act 1896 (Qld), ss 17, 54

Trade Practices Act 1974 (Cth), s 71

Ashington…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QSC 235
Decision Date: 12 October 2018

CaseChat Overview and Summary

The plaintiff brought an action against the first and second defendants in the Federal Circuit Court of Australia for damages based on negligence and breach of contract in relation to the sale of a catamaran. The plaintiff alleged that the first defendant was the undisclosed principal in the sale and that both defendants were negligent in the construction of the vessel. The plaintiff further alleged that the second defendants breached an implied term in the Sale of Goods Act 1896 (Qld) and the Trade Practices Act 1974 (Cth) that the vessel would be of merchantable quality. The first defendant denied that it owed the plaintiff a duty of care and denied that any defects in the vessel were attributable to its negligence. The second defendants denied that the plaintiff bought the vessel by description, denied that the vessel was not of merchantable quality and denied that the plaintiff was entitled to damages.

The court was required to determine whether the first defendant owed a duty of care to the plaintiff, whether the second defendants owed a duty of care to the plaintiff, and whether the alleged defects in the vessel were attributable to the negligence of the defendants. The court was also required to determine whether the second defendants breached an implied term in the Sale of Goods Act 1896 (Qld) and the Trade Practices Act 1974 (Cth) that the vessel would be of merchantable quality. The court held that the first defendant did not owe a duty of care to the plaintiff, that the second defendants owed a duty of care to the plaintiff, and that the alleged defects in the vessel were not attributable to the negligence of the second defendants. The court also held that the second defendants did not breach an implied term in the Sale of Goods Act 1896 (Qld) and the Trade Practices Act 1974 (Cth) that the vessel would be of merchantable quality.

The plaintiff's claim against the first defendant was dismissed. The plaintiff was to make further written submissions as to damages in his claim against the second defendants and any submissions as to the costs of that claim, to be filed and served by 4pm on 24 October 2018. The second defendants’ written submissions in reply were to be filed and served by 4pm on 2 November 2018.

Orders

Orders of the court

The orders of the Court are that:

1. The plaintiff’s claim against the first defendant is dismissed, with parties to make submissions as to costs.

2. The plaintiff is to make further written submissions as to damages in his claim against the second defendants and any submissions as to the costs of that claim, to be filed and served by 4pm on 24 October 2018.

3. The second defendants’ written submissions in reply are to be filed and served by 4pm on 2 November 2018.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Pix v Suncoast Marine Pty Ltd [2018] QSC 235
PARTIES:	TREVOR KEITH PIX (plaintiff) v SUNCOAST MARINE PTY LTD (ABN 41 091 644 101) (first defendant) and MICHAEL JOHN RIDER and KATE RIDER (second defendants)
FILE NO:	SC No 12976 of 2009
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 October 2018
DELIVERED AT:	Brisbane
HEARING DATES:	5 – 7 March 2018; 12 – 13 June 2018
JUDGE:	Holmes CJ
ORDERS:	The orders of the Court are that: 1. The plaintiff’s claim against the first defendant is dismissed, with parties to make submissions as to costs. 2. The plaintiff is to make further written submissions as to damages in his claim against the second defendants and any submissions as to the costs of that claim, to be filed and served by 4pm on 24 October 2018. 3. The second defendants’ written submissions in reply are to be filed and served by 4pm on 2 November 2018.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – where the plaintiff purchased a catamaran from the second defendants – where the plaintiff claimed that the first defendant was the undisclosed principal in the sale – where the plaintiff claimed in negligence for what were said to be defects in the vessel’s paintwork, its susceptibility to water ingress and a failure to meet commercial survey standards in its building – where the plaintiff claimed in negligence against the first defendant on the basis that it had breached a duty of care owed to him as purchaser from it, or alternatively as a subsequent purchaser of the vessel, to construct it with reasonable care – where the plaintiff claimed in negligence against the second defendants on the basis that they had assumed a duty of care to him to supply a vessel constructed with reasonable care – whether the first or second defendants owed the plaintiff a duty of care – whether the alleged defects were attributable to negligence by the defendants CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – BREACH OF CONTRACT – where the plaintiff purchased a catamaran from the second defendants – where the plaintiff claimed that the first defendant was the undisclosed principal in the sale – where the plaintiff contended that the first defendant had breached a term implied by s 71 of the Trade Practices Act 1974 (Cth) that the vessel would be of merchantable quality – where the plaintiff contended that both the first and second defendants had breached a term implied by s 17 of the Sale of Goods Act 1896 (Qld) that the vessel would be of merchantable quality – whether the defendants were in the business of dealing in goods of the vessel’s description – whether the plaintiff bought the vessel by description – whether the vessel was of merchantable quality Sale of Goods Act 1896 (Qld), ss 17, 54 Trade Practices Act 1974 (Cth), s 71 Ashington…