Poat v Wentworthville Water Sports Pty Ltd
[2007] NSWDC 87
•28 February 2007
CITATION: Poat v Wentworthville Water Sports Pty Ltd [2007] NSWDC 87 HEARING DATE(S): 5, 6, 7, 8, and 9 February 2007
JUDGMENT DATE:
28 February 2007JURISDICTION: Civil Jurisdiction JUDGMENT OF: Johnstone DCJ at 1 DECISION: Judgment for the defendants CATCHWORDS: SALE OF GOODS - Sale of a boat - Alleged misleading and deceptive conduct by reason of false representations - Issues as to reliance on any representations - Alleged breaches of implied conditions of merchantable quality and fitness for purpose - Seaworthiness of boat LEGISLATION CITED: Trade Practices Act 1974 (Cth)
Fair Trading Act 1987 (NSW): s 40QCASES CITED: Orix Australia Corporation Limited v Moody Kiddell & Partners Pty Limited [2006] NSWCA 257
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640PARTIES: Phillip Poat (Plaintiff)
Wentworthville Water Sports Pty Ltd (First Defendant)
Richard Elsworthy Pym (Second Defendant)
Peter Wharton (Third defendant)
Pathfinder Marine Pty Limited (Fourth Defendant)
Dawnroe Ptty Limited (Fifth Defendant)FILE NUMBER(S): 1586/05 COUNSEL: Mr C Carter (Plaintiff)
Mr M Elliott (Defendants)SOLICITORS: Caldwell Martin Cox (Plaintiff)
First Defendant in Liquidation
Ellison Tillyard Callanan (Second - Fifth Defendants)
JUDGMENT
Introduction
1. In 2003 Mr Poat bought a boat, a Mustang Royale 3800 sports cruiser, for which he paid $348,783.00. He says that he agreed to buy the boat on 21 August 2003 and took delivery on 13 September 2003.
2. He claims that by reason of a series of defects in the boat at the time of delivery, its actual value was considerably less than the purchase price. He also claims for other losses and expenses incurred in connection with the defects alleged, including the cost of various repairs, berthing fees, slipping charges and fuel costs. He also makes a large claim for loss of earnings.
3. It is Mr Poat’s case that he was misled and deceived into buying the boat by a number of false representations made to him by the defendants.
4. Alternatively, Mr Poat alleges that his boat was not of merchantable quality and was not fit for the purpose for which it was supplied.
5. The defendants say that Mr Poat was not misled or deceived into buying the boat. They deny that there were any defects in the boat at the time of purchase, and say that all the problems about which he subsequently complained were adequately addressed, at no cost to him. Finally, it is the defendants’ case that there is no evidence that the boat’s actual value was, by reason of any defects present at the time of delivery, less than the purchase price paid.
6. It was alleged in the Amended Statement of Claim that Mr Poat entered into an agreement with Wentworthville Water Sports Pty Limited (the first defendant) on 14 September 2003 to purchase the boat, or alternatively that he purchased the boat from Pathfinder Marine Pty Limited (the fourth defendant) or Dawnroe Pty Limited (the fifth defendant). In written submissions Mr Poat alleged that he agreed to buy the boat on 21 August 2003. It was further alleged that Wentworthville Water Sports Pty Limited supplied the boat to Mr Poat, within the meaning of the Fair Trading Act 1987 (NSW), in the course of its business, or alternatively, Pathfinder Marine Pty Limited or Dawnroe Pty Limited supplied the boat to him, in the course of their business.
7. The defendants say the vendor was the Pathfinder Marine Partnership of which Wentworthville Water Sports Pty Limited and Dawnroe Pty Limited were the registered proprietors. The Pathfinder Marine Partnership had a Mustang Cruiser dealership and sold Mustang Cruisers. The evidence establishes that the boat was sold and supplied to Mr Poat by the Pathfinder Marine Partnership, and I so find.
8. The principal issues for determination are:
(a) Did the defendants mislead or deceive Mr Poat into buying his boat?
(i) Did they make any representations that were false?
(ii) If so, did Mr Poat rely on any false representations when buying his boat?
(b) Was the boat of merchantable quality and fit for its purpose?
(c) Was the actual value of the boat less than the purchase price by reason of any defects present
at the time of delivery?
(d) Did Mr Poat suffer or incur any other losses or expenses as a result of any defects in the
boat?
Credit issues
9. The determination of these issues turns almost entirely on the resolution of various factual issues as to which there is significant conflict. Indeed there are some events as to which there are diametrically opposing versions. The credit of witnesses must inevitably play some part in the determination of these conflicts in the evidence.
10. It is appropriate therefore, that I set out my views as to the credibility of various witnesses at the outset.
11. Mr Pym (the second defendant) was a director of Wentworthville Water Sports Pty Limited. Mr Anthony was a director of Dawnroe Pty Limited. Both men worked in the business operated by the Pathfinder Marine Partnership, including the Mustang Cruiser dealership. Mr Wharton was employed by the Pathfinder Marine Partnership as a sales representative.
12. The case for which Mr Poat contends depends to a significant extent on his evidence as to certain events and conversations. It was submitted by his counsel that I should prefer the evidence of Mr Poat to that of the defence witnesses, in particular Mr Wharton, Mr Anthony and Mr Pym, who had an interest in persuading the court as to their version of those events and conversations. Indeed, it was put to them in cross-examination, on several occasions, that their evidence was untrue, or ‘a complete fabrication’, or ‘a concoction of lies’: (see for example T 180.6, 181.4, 181.24, 217.12, 223.18-58, 242.35, 266.10 and 274.35).
13. I could see no basis for these assertions. In my view these witnesses gave their evidence in a straightforward and honest manner. Their versions were consistent with each other and with other extrinsic evidence. They were corroborated in a positive way by other evidence, including for example, the testimony of Mr Noble who was a witness clearly independent of any of the parties.
14. Rather, it was Mr Poat who, in my view, dissembled and prevaricated. His evidence was replete with inconsistencies, discrepancies and improbabilities: (see for example T 25.20-25, 27.5-6, 28.48, 28.55-57, 29.40, 32.58, 56.34-39, 62.52-58, 73.54-74.45). His case was exaggerated and lacking in candour: (see for example T 25.49-54, 40.27-33, 49.36-50.10, and 52.19ff). He was disingenuous and querulous: (see for example T 24.3, 24.23, 24.37, 24.51-2, 25.6-8, 32.3-12, 34.15, and 55.51). There were other examples set out in the defendants’ written submissions, some of which I will discuss when I come later to the detail of Mr Poat’s complaints.
15. The result is that I was not prepared to accept Mr Poat’s evidence on any critical issue unless it was corroborated by independent objective testimony or was credible due to it being consistent with other proven facts.
The representations alleged
16. In the Amended Statement of Claim Mr Poat alleged that Mr Wharton made various false representations about the boat in late August 2003, at Clontarf Marina (the first representations); that Mr Pym made various false representations about the boat in late August and early September 2003, at Clontarf Marina, and in telephone conversations (the second representations); and that Mr Pym made further false representations about the boat in a fax dated 3 September 2003 (the third representations). Mr Poat says that had he known the representations were not true, he would not have bought the boat.
17. It was alleged that by reason of these false representations the defendants had engaged in conduct which was misleading or deceptive or was likely to mislead or deceive, contrary to various provisions of the Trade Practices Act 1974 (Cth)and the Fair Trading Act 1987 (NSW), and were, therefore, liable to Mr Poat.
18. The evidence in support of these allegations was contained in an affidavit sworn by Mr Poat on 14 February 2006.
19. Mr Poat attended the Sydney Boat Show, which he says was in late August 2003, but was in fact held from 31 July to 5 August 2003. Pathfinder Marine had a display, which included three or four 3800 Royale vessels. Mr Poat says he spoke to Mr Wharton who handed him a standard specification sheet, which he did not keep.
20. He alleges that Mr Wharton discussed various features of the 3800 Royale and said, amongst other things, it had a 200-litre holding tank and a 7.5 KVA generator.
21. Mr Wharton does not remember such a conversation. Indeed he does not remember talking to Mr Poat at the Sydney Boat Show. It is improbable that there was any such conversation, having regard to the evidence that Mr Poat in fact recognised Mr Wharton at the subsequent meeting on 21 August 2003, at the Clontarf Marina, and Mr Poat’s evidence that he was a ‘fairly distinctive bloke’ (T 29.53). This was in contradistinction to his evidence that at the Boat Show they dealt with each other as strangers (T 28.55).
22. It is not clear what reliance is placed on this alleged conversation, as there are no allegations in the Amended Statement of Claim to which it could be relevant. To that extent it is but another example of the inconsistencies that pervade Mr Poat’s case. In any event, I do not believe that any such conversation occurred, and to the extent that Mr Poat seeks to make out any case based on it, I am not satisfied that Mr Wharton made any representations to him at the Sydney Boat Show, and I so find. Even if he had, it is improbable that Mr Poat would have relied on representations made in such a setting and under such circumstances.
23. It is common ground, however, that Mr Poat attended at the Pathfinder Marine premises at the Clontarf Marine on 21 August 2003 where he had a discussion with Mr Wharton and inspected a 3800 Royale. Two women accompanied Mr Poat: Marina Cherby and Carmen Simon.
24. Mr Poat says that he ‘quizzed’ Mr Wharton very carefully, and that Mr Wharton made various representations about the boat: (Mr Poat’s affidavit of 14 February 206 at paragraph 8). (But nothing about anti-fouling). Mr Poat inspected two 3800 Royales, one with dark trim and one with a light trim. He told Mr Wharton he liked the boat. Ms Cherby and Ms Simon had given it the “thumbs up”:(T 86.24). He told Mr Wharton that there was no need to take the boat out on a run, but that he would like to “go and talk a deal”. Mr Wharton said he would hand Mr Poat over to Mr Pym to work out a deal and thereupon introduced Mr Poat to Mr Pym.
25. Mr Wharton’s version of these events is quite different. After introductions and mutual recognition, then some reminiscing, discussion turned to the 3800 Royale. Mr Poat expressed an interest in purchasing a Mustang 3800 and taking it out for a run. Mr Wharton told him to make an appointment for a sea trial, which he says occurred at a later date in August. He did not hand Mr Poat over to Mr Pym: (T 179.55-7). No arrangements were made on that day for the trade-in or the final price. The next time he saw Mr Poat was on the day of the sea-trial.
26. During the course of their discussion, Mr Wharton provided the manufacturer’s specification sheet: (T 173.12). Any discussion about the boat was by reference to the specification sheet: (T 174.24ff).
27. I am satisfied that the events and conversations on 21 August 2003 occurred in accordance with Mr Wharton’s version. Clearly the two men inspected the boats and discussed its features (see Ms Cherby’s affidavit at paragraph 7). I am not persuaded, however, that anything said in the course of those discussions amounted to representations that Mr Poat could or did rely on in deciding to buy his boat.
28. Mr Poat was no amateur. He was experienced in buying and selling, and had a considerable knowledge of boats. He had a deep distrust of salesmen, exacerbated by a recent episode with a dealer at Taren Point who had let him down. This caution was such that he had no intention of taking anything Mr Wharton said at face value. Hence his subsequent visit to the manufacturer’s website: (T 32.56), and the sea-trial, to which I shall come. This is confirmed by Mr Poat himself: the only evidence of any reliance in his affidavit of 14.2.06 in respect of the first representations goes as follows:
“ While seated in the boat I decided that if the boat had the specifications referred to by Peter Wharton
I’d prefer this boat to the others I had seen.” (paragraph 9):
There was nothing in the specifications about the boat’s top speed, fuel consumption or passenger capacity. There was nothing about anti-fouling. The specifications given to Mr Poat by Mr Wharton were silent as to the capacity of the holding tank.
29. For all these reasons, I find that there were no false representations made to Mr Poat in respect of his boat by Mr Wharton on 21 August 2003.
30. Alternatively, I find that there was no reliance on the first representations alleged.
31. What occurred next is the subject of conflicting evidence. According to Mr Poat he was introduced to Mr Pym, and went to his office where further discussions ensued: (Mr Poat’s affidavit of 14 February 2006 at paragraph 10). He says Mr Pym gave him a brochure and a specification sheet, which he did not keep.
32. This is at odds with Mr Wharton’s evidence, but more importantly it inconsistent with Ms Cherby’s evidence that Mr Wharton gave Mr Poat a piece of paper, a list: (see Ms Cherby’s affidavit at paragraph 7).
33. In his affidavit sworn on 18 August 2006 Mr Poat gives evidence that he subsequently found the specifications, and they had Mr Pym’s card attached (see Exhibit 2). Unfortunately for Mr Poat, the business card attached to Exhibit 2 was obsolete, Mr Pym having discontinued using that card in mid July 2003, following closure of the Pathfinder Marine office at Rose Bay: (T 238.30.52). The evidence establishes that Mr Poat had had previous dealings with Mr Pym, in June 2003, in relation to a valuation of Mr Poat’s former boat, for trade-in purposes, entirely unrelated to the 3800 Royale the subject of these proceedings. I find that more probably than not, Mr Poat obtained the business card attached to Exhibit 2 at that time, and not on 21 August 2003. I find that the specifications in Exhibit 2 were obtained by Mr Poat subsequent to 21 August 2003, either from the manu-facturer’s website, or from the fax of 3 September 2003, to which I will come.
34. According to Mr Poat, Mr Pym proceeded to make a series of representations about the boat on 21 August 2003: (Mr Poat’s affidavit of 14.2.06 at paragraph 10). These included most but not all of the second representations alleged in the Amended Statement of Claim.
35. According to Mr Wharton, Mr Poat did not have a discussion with Mr Pym on 21 August 2003.
36. According to Mr Pym, he did not have a discussion with Mr Poat on 21 August 2003: (T 242.38-51). It was not his practice to get involved in sales.
37. Mr Pym’s predominant role was in administration. He says that the only involvement he had with Mr Poat in relation to the sale of the boat was the inspection of Mr Poat’s former boat for the trade-in evaluation: (Mr Pym’s affidavit of 2 June 2006 at paragraphs 16(v) and 29(f) and at T 270.10-21), and some paperwork on the day of delivery on 13 September 2003 (at paragraphs 19, 21 and 25). His partner, Mr Anthony, handled all the financial arrangements: (T 270.25-6).
38. The only corroboration of Mr Poat having a conversation with Mr Pym on 21 August 2003 comes from Ms Cherby: (see her affidavit at paragraph 9). Ms Simon gave no evidence, from which I infer that her evidence would not have assisted Mr Poat. I prefer the evidence of Mr Pym and Mr Wharton to that of Mr Poat and Ms Cherby.
39. Even if Mr Pym had made any representations to Mr Poat, I could not be satisfied that Mr Poat would have relied on them in making his decision to buy the boat. The same considerations apply to Mr Pym as applied to Mr Wharton, which I have set out above. Similarly, the only evidence of any reliance in his affidavit of 14 February 2006 on any of the second representations is in paragraph 19, as to the boat not being a new boat. For reasons I come to, I am satisfied that the boat sold to Mr Poat was a new boat.
40. For all these reasons, I find that there were no false representations made to Mr Poat in respect of his boat by Mr Pym on 21 August 2003, or in early September 2003, or in any telephone conversations.
41. Alternatively, I find that there was no reliance on the second representations alleged.
42. The next significant event surrounds the sea-trial. This is another matter that is the subject of conflicting evidence. Mr Poat says it never occurred: (See his affidavit dated 18 August 2006 at paragraph 33).
43. Mr Wharton says there was a sea-trial, and describes it in great detail: (in his affidavit dated 2 June 2006 at paragraphs 17 to 24). He says it occurred about a week later, on 27 August 2003: (T 180.43-51). During the trial Mr Poat took the helm for some 25 minutes, whilst Mr Wharton explained to him the various instruments and gauges. Mr Poat took the boat to 5000 revolutions, the recommended limit, and it operated as it should have in all respects. Mr Poat acknowledged that it had good speed and handling. At the end of the trial, Mr Wharton noted that the engines had done about 12 hours and offered a 20-hour service as part of the purchase price.
44. It was submitted on behalf of the defendants that it is inherently improbable that Mr Poat would spend hundreds of thousands of dollars buying a boat without taking it for a sea-trial. He had taken two other vessels for demonstration runs on 21 August 2003 before arriving at Pathfinder Marine: (see his affidavit of 14 February 2006 at paragraph 7). In Mr Wharton’s experience, virtually all prospective purchasers had sea-trials: (T 202.12-24). I am unable to accept that Mr Poat was the exception.
45. Mr Anthony corroborates Mr Wharton’s evidence: (see his affidavit of 2 June 2006 at paragraph 33). Mr Poat’s attempt to corroborate his version, by reference to his mobile telephone records, backfired badly.
46. These telephone records indicate a conspicuous gap in calls prior to 11.26am on 27 August 2003: (see Exhibit PP1 at page 65). Not coincidentally, in my view, that was a Wednesday. Mr Pym took Wednesdays off. The cross-examination of Mr Pym on this issue was muddled and confusing, particularly as to whether the 27th was in fact a Wednesday, and demonstrated the inherent weakness in Mr Poat’s position: (T 263.49-265.25).
47. For all these reasons, I find that Mr Poat did have a sea-trial of his boat, more probably than not on the morning of 27 August 2003. I find further that the events and conversations that occurred during that sea-trial were in accordance with Mr Wharton’s version of them.
48. The next event to occur was the inspection of Mr Poat’s former vessel, for the trade-in valuation. There was nothing controversial about this event, except perhaps as to the timing and sequence. I am satisfied that the trade-in valuation occurred after the sea-trial on 27 August 2003 and before 3 September 2003.
49. Mr Wharton, Mr Pym and Mr Anthony all undertook the visit to Blakehurst. The only significance of the inspection, so far as it relates to the issues in this case, is the evidence that Mr Poat’s vessel was in poor condition: (see Mr Anthony’s affidavit of 2 June 2000 at paragraph 34), and had been poorly maintained: (see Mr Pym’s affidavit at paragraph 16(v)), and showed signs of neglect: (see Mr Wharton’s affidavit of 2 June 2000 at paragraph 25). Mr Pym was reluctant to do a deal with Mr Poat on the trade-in and had to be persuaded by Mr Anthony to do so. In any event, a trade-in price was agreed, probably on 1 September 2003. It was also agreed that certain optional extras were to be included: a bow thruster, a Furono colour GPS/Plotter, a mooring cover and an icemaker.
50. Mr Poat alleged that it was only after the trade-in was agreed that he agreed to buy the vessel: (at paragraph 55 of the written submissions). It was illustrative of the inconsistencies prevalent in his case that this submission is totally at odds with the submission that he agreed to buy the vessel on 21 August 2003 (at paragraph 1). It is further at odds with paragraph 22 of his affidavit of 14 February 2006, in which he says he decided to proceed with the purchase only after reviewing a specification sheet sent to him on 3 September 2003.
51. On 3 September 2003 an invoice was faxed to Mr Poat. He telephoned Mr Pym and requested that a copy of the specifications for the 3800 Royale be faxed to him. Just why he would want another copy when he had been given the specifications on 21 August 2003, and checked them for himself on the manufacturer’s website, must be a matter for conjecture. Mr Anthony downloaded a copy of the specifications from the manufacturer’s website and arranged for them to be faxed by Mr Wharton to Mr Poat.
52. The significance of this faxed version of specifications is that it differs from the earlier version provided to Mr Poat on 21 August 2003, in that it specified a “Holding Tank With Pumpout 200 LTR”: (see Exhibit 12 of Mr Anthony’s affidavit dated 2 June 2000).
53. Mr Poat alleges that the fax of 3 September 2003 forwarding those specifications constituted the third representations alleged in his Amended Statement of Claim.
54. The first problem with this contention is that the specifications were not unqualified, as the document expressly reserved the right to make changes to the specifications.
55. More importantly, however, the specifications could not constitute representations made by the defendants. These were the manufacturer’s specifications, only passed on by Mr Pym and Mr Wharton. It was a document neither created nor adopted by them, and the mere passing on of the manufacturer’s specifications did not amount to representations on their part: Orix Australia Corporation Limited v Moody Kiddell & Partners Pty Limited [2006] NSWCA 257.
56. In any event, I was not satisfied that Mr Poat relied on the fax in deciding to buy the boat. I find that he had already decided to do so prior to 3 September 2003.
57. For all these reasons, I find that there were no false representations made to Mr Poat about his boat by Mr Pym in the fax dated 3 September 2003.
58. Alternatively, I find that there was no reliance on the third representations alleged.
59. I turn now to the specific complaints. The findings I have already made preclude Mr Poat from succeeding on any of these matters. Nevertheless there are a number of additional or alternative reasons, specific to particular allegations, which it is appropriate be dealt with in the context of the particular complaint:
The boat had a 200-litre holding tank
60. Mr Poat alleges that it was falsely represented to him that the boat he bought had a 200-litre holding tank. He says that Mr Wharton made this representation to him on 21 August 2003, and it was made in the fax of 3 September 2003. The original holding tank in the boat was in fact only a 50-litre tank.
61. I am satisfied that Mr Wharton didn’t even know the size of the holding tank at the time of his discussion with Mr Poat on 21 August 2003, and so could not have made any reference to its size. The version of the specifications given by Mr Wharton to Mr Poat on that day was silent as to the capacity of the holding tank. Indeed, the hulls first laid, up until hull 117, only had 50-litre tanks installed. Only in subsequent hulls was a 200-litre tank installed. Mr Poat’s boat was hull number 110, and it is probable that it was built in March 2003, and hull number 117 in May 2003: (T296.43-46). The evidence further establishes that the manufacturer did not advise Pathfinder Marine of the change: (T 269.9). There is no evidence as to the precise time when the manufacturer altered the specification sheet to include the specific reference to a 200-litre tank. I am satisfied that Mr Wharton was uninformed as to the change. Any discussion on 21 August 2003 was by reference to the old specification, which was silent as to the tank’s capacity.
62. When Mr Poat went to the Mustang website, he checked for himself the capacity of the holding tank, and it was only there that he discovered that the specifications specified a 200-litre holding tank: (T 33.5-8). That was what he relied on, not on anything Mr Wharton said.
63. To their credit, once the true position emerged, the defendants arranged at their own cost for the fitting of a larger tank. Mr Poat complained that this new tank only has a capacity of 142 litres, but no one supports him, even his own expert. All the evidence is that the new tank is a 190-litre tank. This is another instance of his lack of candour. The end result is that the boat now has a holding tank with a sufficient capacity. Any negative impact on the value of the boat has been cured.
64. I find that the defendants made no false representation to Mr Poat as to the capacity of the holding tank.
65. Alternatively, I find that there was no reliance on any representation about the holding tank. Alternatively, I find that Mr Poat suffered no loss as a result of any representation concerning the capacity of the holding tank.
The passenger capacity of the boat was fourteen people
66. Mr Poat alleges that it was falsely represented to him that the boat he bought had a passenger capacity of fourteen people. He says that Mr Wharton made this representation to him on 21 August 2003. It is notable that there was no complaint of this nature made prior to the legal claim against the defendants. He even invited fourteen people to a New Year’s Eve Party on the boat in 2004: (T 25.20). I am not satisfied that Mr Poat relied on any such representation, even if it were to be proved false, which it wasn’t.
67. Even if Mr Wharton had told Mr Poat that the boat’s passenger capacity was fourteen, there is an issue as to whether that could be misleading or deceptive.
68. Mr Poat’s case is that the manufacturer’s recommendation is a maximum of 10 passengers. However, the capacity plate issued by the Waterways Authority for the guidance of boat operators indicates a capacity of 15 people, having regard to the boat’s dimensions: (Exhibit 1). Mr Poat did not even read the capacity plate: (T 40.27-29). This evidence went unchallenged. I am satisfied that the passenger capacity of the boat is fifteen persons.
69. Finally, there is no evidence that even if the passenger capacity of the boat was in fact only 10 persons, the purchase price exceeded the actual worth of the boat when purchased: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640.
70. I find that the defendants made no false representation to Mr Poat as to the boat’s passenger capacity.
71. Alternatively, I find that there was no reliance on any representation about the boat’s passenger capacity. Alternatively, I find that Mr Poat has not proved any loss as a result of any representation concerning the boat’s passenger capacity.
The boat had a 7.5 KVA generator
72. Mr Poat alleges that it was falsely represented to him that the boat he bought had a 7.5 KVA generator.
73. The generator on the boat was and is in fact a 6 KVA generator. It appears that Mustang failed to change the label: (Mr Poat’s affidavit of 14 February 2006 at paragraph 65).
74. Mr Poat says that Mr Wharton made the representation to him at the Boat Show, and again on 21 August 2003, when he told Mr Poat that the boat had a 7.5 KVA generator because of the electronics and the oversized air-conditioner.
75. He alleges that Mr Pym also made this representation as one of the second representations and in the fax of 3 September 2003.
76. Mr Poat said he was concerned that the generator would “handle all the whiz bangs”. Mr Wharton, however, said he never spoke about size, because it was in the specification sheet (T 174.13-15).
77. Apart from Mr Poat, there has never been any complaint that the 6 KVA generator was unsuitable or inadequate for use in Mustang 3800’s in Australia: (see Mr Westcott’s affidavit at paragraph 10). Even Mr Poat made no complaint, either in his handwritten list of problems with the boat in November 2003, or in his letter of complaint dated 24 January 2004 (T 45.27-46.21).
78. I am satisfied that the generator size was not a factor, which influenced Mr Poat into buying his boat.
79. I am satisfied that the defendants made no representations as to generator size or capacity. The only evidence of any representation is that made by the manufacturer in the specifications.
80. Finally, there is no evidence that, by reason of the size or capacity of the generator, the purchase price exceeded the actual worth of the boat when purchased: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640.
81. I find that the defendants made no false representations to Mr Poat as to the boat’s generator.
82. Alternatively, I find that there was no reliance on any representation about the generator. Alternatively, I find that Mr Poat has not proved any loss as a result of any representation concerning the boat’s generator.
The boat’s top speed was 38 mph
83. Mr Poat alleges that it was falsely represented to him that the boat he bought had a top speed of 38mph. He says that Mr Wharton made this representation to him at Clontarf on 21 August 2003.
84. It is improbable that Mr Wharton made such a specific reference to speed, because speed is the product of a range of variable factors: (T 179.19-20).
85. I am satisfied that to the extent speed may have been a factor in Mr Poat purchasing this boat, he relied on the sea-trial.
86. Nor was any evidence led that the boat did not have a maximum operating speed of 38mph at the time Mr Poat decided to buy it. In any event, the engines have now been replaced, at no expense to Mr Poat, and the boat now operates close to if not at 38 mph: (see Mr Hearder’s evidence).
87. Nor is there any evidence that, by reason of the boat’s speed, the purchase price exceeded the actual worth of the boat when purchased: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640.
88. I find that that the defendants made no false representation to Mr Poat as to the boat’s top speed.
89. Alternatively, I find that there was no reliance on any representation about the boat’s top speed. Alternatively, I find that Mr Poat has not proved any loss as a result of any representation concerning the boat’s speed.
The boat’s fuel consumption was 70 litres per hour at cruise
90. Mr Poat alleges that it was falsely represented to him that the boat he bought had a fuel consumption of 70 litres per hour at cruise. He says that Mr Wharton made this representation to him at Clontarf on 21 August 2003.
91. The defendants say that there is simply no evidence as to the boat’s fuel consumption, nor were any witnesses cross-examined on the issue: (see their written submissions at paragraph 55). Counsel for the plaintiff did not point to any in his submissions. I have been unable to find any.
92. The allegation fails.
93. Alternatively, I find that the defendants made no false representation to Mr Poat as to the boat’s fuel consumption.
94. Alternatively, I find that there was no reliance on any representation about the boat’s fuel consumption. Alternatively, I find that Mr Poat has not proved any loss as a result of any representation concerning the boat’s fuel consumption.
The boat would be anti-fouled before delivery
95. Mr Poat alleges that it was falsely represented to him that the boat would be anti-fouled before delivery. He says that Mr Wharton made this representation to him on 21 August 2003. He further alleges that it was falsely represented to him that the boat would be anti-fouled while fitting the bow thruster.
96. There is no evidence to support these allegations, and they fail.
97. Alternatively, I find that the defendants made no false representations to Mr Poat as to anti-fouling.
98. Alternatively, I find that there was no reliance on any representation about anti-fouling. Alternatively, I find that Mr Poat has not proved any loss as a result of any representation concerning anti-fouling.
The boat was one of a special run for the boat show
The boat had been bonussed by Mustang as a promotional offer
The Mustang offer applied only to boats in stock
99. Mr Poat alleges that it was falsely represented to him that the boat was one of a special run for the boat show; that the boat had been ‘bonussed’ by Mustang as promotional offer: and that The Mustang offer applied only to boats in stock. He says that Mr Pym made these representations to him as some of the second representations.
100. The evidence in fact establishes that the boat was ordered for the purposes of sale stock in 2003: (see Mr Anthony’s affidavit of 2 June 2006 at paragraphs 9 – 11). Two Mustang 3800 Royale Sports Cruisers were ordered. Neither sold before the Boat Show so they were exhibited at the Boat Show.
101. In any event, it is improbable that these matters would have been a factor influencing Mr Poat to buy the boat. And even if they were, there is no evidence that such matters could or did cause the purchase price to exceed the actual worth of the boat when purchased.
102. I find that that the defendants made no false representations to Mr Poat in respect of these matters.
103. Alternatively, I find that there was no reliance on any of the alleged representations. Alternatively, I find that Mr Poat has not proved any loss as a result of any such representations.
The boat was the latest model
104. Mr Poat alleges that it was falsely represented to him that the boat was the latest model. He says that Mr Pym made this representation to him as one of the second representations.
105. Even if Mr Pym had said this, it was not false or misleading. The evidence was that Mr Poat’s boat was the latest model, a 3800 Royale.
106. Mr Poat’s counsel made no submissions on this issue. Indeed I took it to have been abandoned: (see the written submissions of the plaintiff at paragraph 31).
107. Counsel for the defendants was highly critical of Mr Poat for his failure to formally withdraw this allegation, describing it as an ‘uninformed conspiracy theory’ and evidence as to his lack of good faith in the pursuit of these proceedings: (see the defendant’s written submissions at paragraphs 71 – 82).
108. I find that that the defendants made no false representation to Mr Poat as to the boat being the latest model.
109. Alternatively, I find that there was no reliance on the alleged representation. Alternatively, I find that Mr Poat has not proved any loss as a result of any such representation.
The boat was a new boat
110. Mr Poat alleges that it was falsely represented to him that the boat was a new boat. He says that Mr Pym made this representation to him as one of the second representations.
111. It was Mr Poat’s case that the boat was not new, as it was a ‘demonstrator’. It was also submitted that the boat was not new because it had been displayed at the Boat Show; it had accrued significant engine hours, and had travelled under power to several different locations prior to sale.
112. The defendants say the boat sold to Mr Poat was a new boat, its principal argument being that the boat had not had a previous owner (T 22.41-43).
113. It was further submitted that it was never put to any defendant that the term “new boat” meant something in particular. The concept of a ‘demonstrator’ was not raised in the pleadings. There is no evidence that the concept of a “demonstrator” has any particular significance in the boat industry, or even if that is some term of art, that this boat was a ‘demonstrator’: (T 221.6-19).
114. This boat was for sale. It was displayed at the Boat Show. It was, presumably, shown to other prospective purchasers. The only evidence of a sea-trial was that undertaken by Mr Poat himself. Otherwise, the only travel undertaken was its trip to the Boat Show, its trip to Cronulla, and other running in and testing.
115. The defendants’ evidence, which I accept, is that the boat had 12-14 hours on it when sold: (T 221.16 and 265.56). Why else would Mr Wharton offer a free 20-hour service: (see his affidavit of 2 June 2006 at paragraph 22)?
116. The result is that Mr Poat did not prove that his boat was not a new boat.
117. I find that that the defendants made no false representation to Mr Poat as to the boat being a new boat.
The boat would be seaworthy
118. Mr Poat alleges that it was falsely represented to him that the boat would be seaworthy. He says that Mr Pym made this representation to him as one of the second representations.
119. The Amended Statement of Claim does not particularise the respects in which it was alleged the boat was unseaworthy: (see paragraph 21(m)). The only evidence in support of this allegation was that there was a problem with the watertightness of some portholes, and that certain safety equipment was missing.
120. The assertion in respect of the safety equipment was negated (see the cross-examination of Mr Pym).
121. The suggestion that the boat was not seaworthy by reason of some porthole leakage, discovered only in 2005 by Mr Hearder, is in my view unsustainable. When pressed, Mr Hearder retreated from the proposition: (T 109.2-25).
122. Mr Poat did not prove that his boat was not seaworthy.
123. I find that the defendants made no false representation to Mr Poat as to the boat being seaworthy.
The boat’s engines are very reliable
124. Mr Poat alleges that it was falsely represented to him that the boat’s engines were very reliable. He says that Mr Pym made this representation to him as one of the second representations.
125. The Amended Statement of Claim does not particularise the respects in which it was alleged the engines were not reliable: (see paragraph 21(m)). There were allegations in other parts of the pleading that the engines constantly stalled and were hard to start: (see paragraph 26(p) and (q)). There was no credible evidence to support these assertions. There was evidence from Mr Poat that the engines stalled on a few occasions: (see his affidavit of 14 February 2006 at paragraphs 34, 36, 39, 43, 70, 71, 85, and T 77.43-53, 78.14-17 and 82.11). He also complained that the boat would not rev beyond 3000 revs per minute, contrary to the optimum rev range specified in the service manual (see his affidavit of 14 February 2006 at paragraph 40).
126. In April 2003, Mr Hoskins, an employee of the Volvo engine company undertook an inspection of the engines. He noted that the maximum full loaded RPM’s of the boat was 4900: (see Exhibit 5 to Mr Anthony’s affidavit of 2 June 2006).
127. When Mr Poat took the boat out on the sea-trial, the engines operated at about 5000 revolutions a minute.
128. On 25 September 2003 Mr Hoskins tested the engines and found no problems. He again inspected the engines in December 2003 and determined that the engines were not operating at the designed revolutions per minute due to propeller damage. He replaced the propellers and the problem was solved.
129. There is nothing in the evidence to connect the stalling experienced by Mr Poat with any inherent unreliability in the engines, as opposed to some operational cause.
130. I am not satisfied that any unreliability in the engines at the time of purchase has been proved.
131. In any event, the engines were replaced, at no cost to Mr Poat, and the evidence is that they now operate reliably and within approved parameters, so that to the extent there were any problems, it cannot be said that the purchase price exceeded the actual worth of the boat when purchased: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640.
132. I find that the defendants made no false representations to Mr Poat as to the boat’s engines.
133. Alternatively, I find that there was no reliance on any representation about the engines. Alternatively, I find that Mr Poat has not proved any loss as a result of any representation concerning the boat’s engines.
The remaining representations alleged
134. Mr Poat made allegations of a number of other false representations. I do not propose to deal individually with any of the remaining representations alleged. The findings I have already made preclude Mr Poat from succeeding on them. Some merely repeat or are a subset of representations dealt with above. Others, to the extent that they have not been abandoned, are either meaningless or incapable of founding a cause of action based on misleading or deceptive conduct.
Did the defendants mislead or deceive Mr Poat into buying his boat?
135. For all these reasons I am satisfied that the defendants did not mislead or deceive Mr Poat into buying his boat.
136. I find that the defendants did not engage in any misleading or deceptive conduct such as to attract any liability under the Trade Practices Act 1974 (Cth)or the Fair Trading Act 1987 (NSW).
137. I find, alternatively, that Mr Poat failed to prove that the value of his boat was less than the purchase price at the time of purchase by reason of any of the defects he alleged.
Was the boat of merchantable quality and fit for purpose?
138. The next issue for determination is whether the boat was of merchantable quality and fit for its purpose at the time of its supply on 13 September 2003.
139. Counsel submitted that Mr Poat was sold ‘the proverbial lemon’. As will be seen, this submission was not supportable.
140. Some preliminary observations are pertinent.
141. Mr Poat has made extensive use of his boat, significantly in excess of the average use of such a pleasure craft. The boat was awarded several boat and design awards: (see the defendant’s written submissions at paragraph 6).
142. Mr Poat’s complaints about the boat were inconsistent. On the day of delivery he took the boat round to Cockle Bay at Darling Harbour where he carried out a ‘detailed inspection’: (see paragraph 31 of his affidavit of 14 February 2006). The only problems then noted related to the air-conditioning, the DVD/TV and the effluent tank (paragraph 31), the hours and the revs (paragraph 33), and the left hand engine (paragraph 34). Further complaints only emerged in a faxed list of problems in September 2003 (paragraph 35), and a list supplied on 4 November 2003 (paragraph 42). These lists were neither comprehensive nor consistent: (see for example T 64-69).
143. The defendants made considerable efforts to address all of Mr Poat’s complaints, both within the warranty and otherwise.
144. As I have already found, Mr Poat did not, in any event, rely upon the skill or judgment of the defendants in purchasing the boat, and no express or implied condition has been proved as to fitness for purpose in respect of any defect alleged: s 40Q(2) of the Fair Trading Act 1987.
145. Mr Poat inspected the boat before purchase. He took it for a sea-trial. That examination ought to have revealed many of the defects he alleges. Accordingly no implied condition has been proved as to merchantable quality in respect of any defects that could have been detected either by inspection or as a result of the sea-trial: s 40Q(1)(b) of the Fair Trading Act 1987.
146. I turn to the specific complaints.
147. Insofar as the Amended Statement of Claim seeks to ‘pick-up’ the allegations in paragraph 21 and raise them as matters going to the merchantable quality or fitness for purpose of the boat, some of these allegations are disposed of above. Others will be dealt with below in reference to the specific allegations in paragraph 26. The remaining allegations in paragraph 21 are either incapable of amounting to a breach of any implied condition, or, there is no evidence to support the allegation, and I will not, therefore, deal with them specifically: (b), (d), (e), (g), (h), (i), (j), (k), (l), (n), (o), (q), (r) and (s).
148. I come, therefore, to the complaints in paragraph 26. The findings I have already made preclude Mr Poat from succeeding on any of these matters in respect of any alleged breach of an implied condition as to fitness for purpose. Nevertheless there are a number of additional or alternative reasons, specific to particular allegations, which it is appropriate be dealt with in the context of the particular complaint. I also need to address the issue of merchantable quality in respect of some defects that were not detectable on inspection.
(a) The toilet
149. It was alleged that the toilet overflowed causing both excrement to be deposited on the shower floor, and odour.
150. The defendant contends that there were no problems with the toilet at the time of purchase and to the extent that any ensued, they were not due to any absence of merchantable quality or unfitness for purpose. Further, that they were caused by neglect and misuse, after purchase.
151. There is no evidence of any problems with the toilet prior to delivery. It was checked as part of the pre-delivery check undertaken by Mr Anthony: (see his affidavit of 2 June 2006 at paragraph 18).
152. On 12 September 2003, prior to delivery to Mr Poat, Mr Anthony and Mr Wharton carried out a comprehensive check of the boat, including the toilet: (See Mr Wharton’s affidavit of 2 June 2006 at paragraph 29). The next day at the time of hand-over to Mr Poat, Mr Wharton demonstrated the use of the toilet and operation of the holding tank macerator (paragraph 36). Mr Poat returned the boat a few days later for the ‘extras’ to be fitted and collected it on 22 September 2003, when he signed the pre-delivery record. He made no complaint about the toilet.
153. It was not put to any witness that the toilet was defective as at the date of delivery: (see the defendants’ written submissions at paragraph 106).
154. To the extent that Mr Poat complained that the effluent tank was full on the day of delivery, I prefer the evidence of the defendants, and find that the effluent tank was not full when delivered to Mr Poat. In any event, such an allegation, even were it true, could not mean the boat was not of merchantable quality or unfit for purpose.
155. Later in September 2003, the toilet became the subject of complaints. Mr Pym and Mr Wharton inspected it and discovered that the holding tank had been misused, the seacock having been left open allowing water to siphon in. Nevertheless, an anti-siphon loop was installed at no cost to Mr Poat to prevent further siphoning: (T 57.26-37). The problem abated.
156. However, further complaints about the toilet overflowing emerged in early November 2003. Mr Poat delivered his boat to the Clontarf marina on 4 November 2003. Ms Cherby and Ms Simon again accompanied him. The defendants deal with this episode in their written submissions (at paragraphs 110-118). The conclusion I reach is that if there was overflowing, it was due to a blockage in the macerator caused by toilet paper or other items placed in the toilet as a result of human intervention.
157. If there had been any defects, these would have been detectable at the time of Mr Poat’s pre-delivery inspections.
158. I am satisfied that there is no evidence of toilet malfunction, either at the time of delivery, or subsequently. Nor is there any evidence that the toilet, properly used, was defective.
159. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the toilet. Alternatively, there was no breach of any such implied condition.
160. I find that no condition as to merchantable quality was implied into the contract of sale in respect of the toilet. Alternatively, there was no breach of any such implied condition.
161. Alternatively, I find that Mr Poat has not proved any loss as a result of any toilet overflow.
(b) Holes in the hull
162. It was alleged that the boat leaked because holes had been put through the hull when a canopy was fitted and an attempt had been made to seal them with Silastic which will fail over time.
163. The allegation is at odds with the pre-delivery form signed by Mr Poat. It was not raised in the November 2003 list of complaints. Any such problem was not apparent to Mr Hearder upon his inspection of the boat in December 2005.
164. It was not put to any witness that this problem existed as at the date of delivery: (see the defendants’ written submissions at paragraph 123(2)).
165. I am not satisfied that the boat leaked at the date of delivery, or at any time subsequent to delivery, as a result of holes in the hull. If indeed the Silastic will fail over time, this is a problem that Mr Poat is readily capable of remedying, and it cannot be said that any damage will flow which is not susceptible to mitigation.
166. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of any holes in the hull. Alternatively, I find that the boat was reasonably fit for the purpose for which it was supplied.
167. I find that the merchantable quality of the boat was unaffected by any holes in the hull.
168. Alternatively, I find that Mr Poat has not proved any loss as a result of any holes in the hull.
(c) The generator function
169. It was alleged that the generator was overheating and not functioning.
170. This allegation is also at odds with the pre-delivery form signed by Mr Poat. Likewise, it was not raised in the November 2003 list of complaints. The defendants submit that Mr Poat was inconsistent on this issue and equivocated in cross-examination: (see the defendants’ written submissions at paragraph 126). The expert, Mr Hearder, was unable to indicate any fault with the generator that would require repair. In any event, in his view, if there was a problem, it was covered by the warranty, and there is no loss.
171. In the absence of any corroboration, I am unable to accept Mr Poat’s evidence as to this alleged defect. I am not satisfied that it existed.
172. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the generator. I find, alternatively, there was no breach of any such implied condition.
173. Alternatively, I find that the generator was reasonably fit for the purpose for which it was supplied and was of merchantable quality at the time of delivery.
174. Alternatively, I find that Mr Poat has not proved any loss as a result of any defect alleged in the generator.
(d) The refrigerator
175. It was alleged that the refrigerator door fell off due to a faulty hinge. It is alleged that this occurred on 22 September 2003: (see paragraph 35 of Mr Poat’s affidavit of 14 February 2006). He resiled from this assertion in cross-examination: (T 62.51).
176. I am not satisfied that the fridge door fell off, as opposed to the hinge having been bent out of shape. There is no evidence that the fridge hinge was faulty at the time of delivery. To the extent that it was damaged, I find that this occurred after delivery of the boat.
177. In any event, it was fixed and Mr Poat suffered no loss.
178. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the refrigerator. I find, alternatively, there was no breach of any such implied condition.
179. Alternatively, I find that the refrigerator was reasonably fit for the purpose for which it was supplied and was of merchantable quality on the date of delivery.
180. Alternatively, I find that Mr Poat has not proved any loss as a result of any problem with the door of the refrigerator.
(e) The TV/DVD
181. It was alleged that the TV/DVD did not work at all. This was simply untrue. The only problem was that the TV reception was not perfect. There is no credible evidence of any other problem. There is no evidence that the TV reception was any worse than the normal for a TV of this size and on a boat.
182. But, to their credit, in response to Mr Poat’s complaints, the defendants went to the trouble of engaging Aquatronics to check the equipment. No fault was found.
183. If there had been a fault, this was a problem that was detectable by Mr Poat at the pre-purchase inspections and sea-trial.
184. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the TV/DVD. I find, alternatively, there was no breach of any such implied condition.
185. Alternatively, I find that the TV/DVD was reasonably fit for the purpose for which it was supplied.
186. I find that no condition as to merchantable quality was implied into the contract of sale in respect of the TV/DVD. Alternatively, there was no breach of any such implied condition.
187. Alternatively, I find that Mr Poat has not proved any loss as a result of any problem with the TV/DVD.
(f) The air-conditioning
188. It was alleged that the air-conditioning did not function.
189. The allegation is at odds with the pre-delivery form signed by Mr Poat, on which he ticked the relevant item. He does allege it was one of the matters discovered at the Cockle Bay inspection on the day of delivery. Curiously, however, he did not complain about the air-conditioning in any of the conversations he alleges occurred the following day, either to Mr Pym, or to Mr Wharton (see paragraphs 33, 34 and 35 of his affidavit).
190. Mr Poat alleges it was raised in the missing September fax, and in a conversation with Mr Wharton in late September 2003. Mr Wharton denies these allegations, and for all the reasons previously expressed, I prefer his evidence to that of Mr Poat.
191. It was not until November 2003 that this complaint was first raised, in the November list, which recorded that the air-conditioning was “not very effective”. A far cry from the assertion that it did not function at all.
192. Nevertheless, the defendants investigated the complaint and it was discovered that the air-conditioning had been placed on the wrong setting. Mr Anthony re-set it.
193. But Mr Poat continues to complain that the air-conditioning is inadequate to cool the boat and that it frequently overloads the power supply. These assertions are not corroborated by credible evidence and I reject them. There is no evidence that the air-conditioning does not operate, nor is there any evidence of some defect in the system. Furthermore, if there was, it was a warranty issue: (see Mr Hearder’s affidavit). It could not, therefore, result in any loss to Mr Poat in any event.
194. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the air-conditioning. I find, alternatively, there was no breach of any such implied condition.
195. Alternatively, I find that the air-conditioning was reasonably fit for the purpose for which it was supplied and was of merchantable quality on the date of delivery.
196. Alternatively, I find that Mr Poat has not proved any loss as a result of any problem with the air-conditioning.
(g) The trim around the front bunk
197. It was alleged that the trim around the front bunk was broken.
198. No complaint appears on the checklist signed by Mr Poat when taking delivery. No complaint emerged as a result the ‘detailed inspection’ carried out by him at Cockle Bay on the day of delivery.
199. There simply isn’t any evidence that the trim was broken at the time of delivery. Such a defect, if it existed, was capable of detection on inspection.
200. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the trim around the front bunk. Alternatively, there was no breach of any such implied condition.
201. I find that no condition as to merchantable quality was implied into the contract of sale in respect of the trim around the front bunk. Alternatively, there was no breach of any such implied condition.
202. Alternatively, I find that the trim around the front bunk was reasonably fit for the purpose for which it was supplied and was of merchantable quality on the date of delivery.
203. Alternatively, I find that Mr Poat has not proved any loss as a result of any problem with the door of the trim around the front bunk.
(h) The anchor winch
204. It was alleged that the anchor winch failed.
205. There is no evidence of any defect in the anchor winch at the date of delivery. It was not put to any defence witness that there was. It did not even appear on the November list. Mr Poat’s evidence on this was inconsistent: (see paragraph 42(h) of his affidavit of 14 February 2006). I disbelieve Mr Poat on this issue. Mr Hearder found that the winch was operating successfully at the time of his inspection.
206. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the anchor winch. Alternatively, there was no breach of any such implied condition.
207. Alternatively, I find that the anchor winch was reasonably fit for the purpose for which it was supplied and was of merchantable quality on the date of delivery.
208. Alternatively, I find that Mr Poat has not proved any loss as a result of any problem with the anchor winch.
(i) The toilet pump circuit breaker
209. It was alleged that the toilet pump circuit breaker was tripping.
210. The evidence presented does not go to the state of the vessel at the date of delivery and the allegation fails. In any event, I am satisfied that this problem occurred well after delivery, not as a result of some existing defect, but caused by reason of some event or circumstance occurring after delivery.
211. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the toilet pump circuit breaker. Alternatively, there was no breach of any such implied condition.
212. Alternatively, I find that the toilet pump circuit breaker was reasonably fit for the purpose for which it was supplied and was of merchantable quality on the date of delivery.
(j) The generator size
213. It was alleged that an incorrect sized generator was fitted causing the circuit breaker to trip when power draw from accessories was too high.
214. The assertion that a wrongly sized generator was fitted is simply not supported by any credible evidence.
215. What the evidence did establish was that the generator was not capable of running all of the various electrical items on the boat at the same time. Mr Poat says he was told that it would but I do not accept his evidence in this regard. Even if he had, I am not satisfied that he relied upon the skill or judgment of the defendants as to the generator’s size in purchasing the boat.
216. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the generator size. Alternatively, there was no breach of any such implied condition.
217. Alternatively, I find that the generator was reasonably fit for the purpose for which it was supplied and was of merchantable quality on the date of delivery.
218. Alternatively, I find that Mr Poat has not proved any loss as a result of the size of the generator.
(k) The dining table
219. It was alleged that the dining table was blistered.
220. There was no complaint about this at the time of delivery. It was on the checklist that Mr Poat Which ticked as being in order, and signed.
221. When the complaint emerged on the November list, the defendants inspected the table and found some minor mould imperfections. To their credit, at their own expense, they cut and polished the table.
222. This defect did not exist at the time of delivery. If it had been present, it was detectable by Mr Poat on his inspections.
223. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the dining table. Alternatively, there was no breach of any such implied condition. The table was reasonably fit for the purpose for which it was supplied.
224. I find that no condition as to merchantable quality was implied into the contract of sale in respect of the table. Alternatively, there was no breach of any such implied condition and the table was of merchantable quality at the time of delivery.
225. Alternatively, I find that Mr Poat has not proved any loss as a result of any problem with the table.
(l) Engine revolutions
226. It was alleged that the engines would not reach their designed revolutions.
227. I have already made findings on the question of engine revolutions. The allegation was not proven, and the evidence is that the engines now operate reliably and within approved parameters.
228. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of engine revolutions. Alternatively, there was no breach of any such implied condition. The engines were reasonably fit for the purpose for which the boat was supplied.
229. Alternatively, I find that the engines were reasonably fit for the purpose for which they were supplied and were of merchantable quality on the date of delivery.
230. Alternatively, I find that Mr Poat has not proved any loss as a result of the engine revolutions.
(m) The outlets
231. It was alleged that three 12-volt outlets were not fitted.
232. The assertion is true, but there is no evidence to the effect that this rendered the boat unfit for purpose or made it unmerchantable. Nor is there any evidence that it led to any loss.
233. Mr Poat evidence on this item is further proof of his unreliability: (see the defendants’ submissions at paragraphs 188 – 189).
234. It was another item that was detectable at the inspections carried out by Mr Poat.
235. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the outlets. Alternatively, there was no breach of any such implied condition. The boat was reasonably fit for the purpose for which it was supplied without three outlets having been fitted.
236. I find that no condition as to merchantable quality was implied into the contract of sale in respect of the outlets. Alternatively, there was no breach of any such implied condition.
237. Alternatively, I find that Mr Poat has not proved any loss as a result of the fact that three 12-volt outlets were not fitted
(n)-(o) The work done in respect of the holding-tanks
238. It was alleged that the work done to replace the holding tank and to seal the previous tank was not done in a workmanlike manner.
239. Even if these allegations were true, which I do not accept, they do not establish a claim based on breach of any implied conditions at the time of delivery.
240. These claims must fail.
(p)-(q) The engines
241. It was alleged that the engines constantly stalled and were hard to start.
242. I have already made findings on these allegations, and was satisfied that there was no basis for them. In any event, the engines were replaced, at no cost to Mr Poat, and now operate reliably.
243. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the engines. Alternatively, there was no breach of any such implied condition.
244. Alternatively, I find that the engines were reasonably fit for the purpose for which the boat was supplied and were of merchantable quality on the date of delivery.
245. Alternatively, I find that Mr Poat has not proved any loss as a result of the engines.
(r) The propellers
246. It was alleged that the propellers were damaged.
247. The evidence does not support this allegation. Damage to the propellers was discovered by Mr Hoskins in December 2003, and they were replaced. There is no credible evidence that there was any damage at the time of delivery, and I find that any damage to the propellers occurred subsequently.
248. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the propellers. Alternatively, there was no breach of any such implied condition.
249. Alternatively, I find that the propellers were reasonably fit for the purpose for which they were supplied and were of merchantable quality on the date of delivery.
250. Alternatively, I find that Mr Poat has not proved any loss as a result of any damage to the propellers.
(s) The anti-foul
251. It was alleged that the anti-foul was in poor condition and fell off.
252. The high point of the evidence is that there were two patches on one side of the boat where the anti-fouling paint was no longer present. But there is no credible evidence that this was due to any incorrect application of the anti-foul prior to delivery. I am satisfied that to the extent the anti-foul was absent, this was caused after delivery, more probably than not due to a collision: (see the evidence of Mr Jeffress).
253. In any event, there can have been no loss as the boat was subsequently anti-fouled on several occasions as part of annual maintenance and there is no evidence of any damage to the boat due to the absence of anti-foul.
254. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the anti-foul. Alternatively, there was no breach of any such implied condition.
255. Alternatively, I find that the anti-foul was reasonably fit for the purpose for which was supplied and was of merchantable quality on the date of delivery.
256. Alternatively, I find that Mr Poat has not proved any loss as a result of any problem with the anti-foul.
(t) The toilet through hull valve
257. It was alleged that the toilet through hull valve failed due to intergranular corrosion.
258. I am satisfied, however, that the true cause was that the valve was broken when Mr Poat hit it with a boat hook. I find that the toilet through hull valve was not defective.
259. And, like other items the subject of his complaints, the defendants replaced the valve, and Mr Poat has not suffered any loss.
260. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the toilet through hull valve. Alternatively, there was no breach of any such implied condition.
261. Alternatively, I find that the toilet through hull valve was reasonably fit for the purpose for which it was supplied and was of merchantable quality on the date of delivery.
262. Alternatively, I find that Mr Poat has not proved any loss as a result of any problem with the toilet through hull valve.
(u) The toilet pump impeller
263. It was alleged that the toilet pump impeller failed.
264. There was no evidence to support this allegation, and it fails.
(v) The gauges
265. It was alleged that the gauges were inaccurate.
266. There was no evidence to support this allegation, and it fails.
(w) The toilet’s operation
267. It was alleged that the toilet was inoperable due to stench.
268. The defendants say there was never any complaint about this.
269. What is clear is that the defendants went to the trouble of installing a larger holding tank. But Mr Poat is still complaining, alleging that the old tank left on board is full of effluent. If it is, one wonders why he doesn't remove it.
270. It seems that from time to time there was a smell.
271. The defendants submit that the smell cannot have been too bad given the extensive use made of the boat by Mr Poat and his friends since purchase: (see the defendants’ written submissions at paragraph 215).
272. Whatever may have been the extent of any smell on this boat, I am satisfied, that it has not been the result of any defect in the toilet, but that it resulted from use of the toilet and inadequate care and treatment of it, including appropriate emptying.
273. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the toilet. Alternatively, there was no breach of any such implied condition.
274. Alternatively, I find that the toilet was reasonably fit for the purpose for which it was supplied and was of merchantable quality on the date of delivery.
275. Alternatively, I find that Mr Poat has not proved any loss as a result of any problem with the toilet.
(x) The icemaker
276. It was alleged that the icemaker was not installed correctly and functions poorly.
277. There was no evidence that this problem existed at the time of delivery.
278. I find that no condition as to fitness for purpose was implied into the contract of sale in respect of the icemaker. Alternatively, there was no breach of any such implied condition.
279. Alternatively, I find that the icemaker was reasonably fit for the purpose for which it was supplied and was of merchantable quality on the date of delivery.
280. Alternatively, I find that Mr Poat has not proved any loss as a result of any problem with the icemaker.
Seaworthiness
281. For reasons already expressed I find that the boat was seaworthy at the date of delivery.
Did the defendants breach any statutory warranties?
282. I find that Mr Poat did not rely upon the skill or judgment of the defendants in purchasing the boat, or in respect of any aspect of the boat. No condition as to fitness for purpose was implied into the contract of sale. I am satisfied, in any event, that the boat was fit for its purpose at the time of its supply on 13 September 2003.
283. I find that many of the defects alleged would, in any event, have been revealed on the inspections and sea-trial conducted by him. In respect of those defects, no condition as to merchantable quality was implied into the contract of sale. I am satisfied that the boat was of merchantable quality at the time of its supply on 13 September 2003.
284. To the extent that any conditions were implied into the contract of sale by the Fair Trading Act 1987 (NSW), I find that the defendants were not in breach.
Was the actual value of the boat less than the purchase price?
285. The only evidence of value went to the present re-sale value of the boat. Even that evidence was unreliable. The basis for the opinions expressed were never articulated or established. There was no evidence as to the value of the boat at the time of sale, and whether that value was less than the purchase price, either at all or as a result of any of the defects complained of by Mr Poat.
286. I find that the “valuation” evidence had no proper foundation: (see the defendants’ submissions at paragraph 97). I reject Mr Hearder’s evidence on this issue in its entirety.
287 I was not satisfied in any event that any of the complaints made by Mr Poat would have resulted in the value of the boat being lower than the purchase price. But even if I had been, there was no reliable evidence to prove what that difference might have been.
Did Mr Poat suffer or incur any other losses or expenses?
288. Mr Poat claims a number of other losses and expenses as set out in Amended Schedule 1 to his affidavit of 21 September 2006.
289. The findings I have made preclude Mr Poat from recovering any damages in respect of the items claimed in Amended Schedule 1.
290. However, for the sake of completeness I should express my views on the items he has claimed.
291. Mr Poat claimed $60,000.00 for loss of earnings, being $1,500.00 for 40 days spent dealing with issues relating to the boat. The claim is not pleaded or particularised. Even if I were to accept that Mr Poat lost any work time attributable to the defendants’ conduct, which I don’t, I would require more detail and substantiation of the loss of income alleged before I could be satisfied as to the quantum of the loss claimed. Nor is there sufficient particularity to assess the reasonableness of the time claimed and to what it is attributable. The claim must fail.
292. The next claim is for holding costs of $19,365.00, including berthing fees at Sylvania, registration and insurance. There is no credible evidence to support these claims.
293. The next claim is for expenses relating to repairs, in a total of $10,101.00. The invoices relied on do not support any claim for losses that can be attributed to any conduct of the defendants.
294. The final claim is for the cost of a cockpit cover in an amount of $2,123.00. This was not pleaded, nor does the evidence support it.
295. I find, therefore, that Mr Poat has not proved any other losses or expenses.
Summary
296. The defendants did not mislead or deceive Mr Poat into buying his boat.
297. The defendants did not engage in any misleading or deceptive conduct.
298. The defendants did not breach any conditions implied into the contract of sale.
299. Mr Poat failed to prove that the value of his boat was less than the purchase price at the time of purchase by reason of any of the defects he alleged.
300. Mr Poat did not suffer any other recoverable losses or expenses.
Disposition
301. For these reasons I find for the defendants and enter a verdict in their favour.
302. I direct the entry of judgment accordingly.
303. I reserve costs pending argument.
304. The exhibits are to remain in court for 28 days, after which period they may be returned to the parties.
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