Rosshaven v Mitchell

SUPREME COURT OF QUEENSLAND

CITATION:

Rosshaven v Mitchell [2004] QSC 008

PARTIES:

ROSSHAVEN MARINE PTY LTD
ACN 010 615 719
(Plaintiff)
v
CRAIG GEOFFREY MITCHELL
(Defendant)
and
ARTHUR JOHNSON
(Defendant by counterclaim)

FILE NO/S:

S.131 of 2002

DIVISION:

Trial

PROCEEDING:

Application for damages

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

6 February 2004

DELIVERED AT:

Townsville

HEARING DATE:

15-16 April 2003; 14-15 October 2003; 29 January 2004

JUDGES:

Cullinane J

ORDER:

I give judgment for the plaintiff against the defendant on the claim in the sum of $4,463.91 being the amount claimed together with interest at the rate of 9% per annum from the 4^th day of July 2001 until judgment.

I give judgment for the defendants on the counterclaim against the plaintiff on the counter-claim with costs to be assessed.

CATCHWORDS:

CONTRACT LAW –CLAIM FOR DAMAGES – PERFORMANCE OF WORK TO SEA VESSEL – claim for damages for repairs carried out – counterclaim for breach of contract – counterclaim of ‘unseaworthiness of vessel – breach of contract – whether plaintiff liable under s.52 Trade Practices Act 1974.

Trade Practices Act 1974 (Cth), s.52

Cable (1956) Ltd v Hutcherson Bros Pty Ltd (1969) 123 CLR 143

COUNSEL:

A Moon for the plaintiff
There was no appearance for the defendant

SOLICITORS:

Connolly Suthers Lawyers for the plaintiff
The defendant acted on his own behalf

1. The plaintiff instituted proceedings in the Magistrates Court which have been transferred to the Supreme Court.  In those proceedings it claims $3,739.90 being the balance of monies said to be due and owing under a contract to effect repairs to a vessel previously known as the M.V. Coral Reef and now known as the M.V. The Elizabeth.

1. The defendant has filed a defence and counterclaim and in response a reply and answer has been filed by the plaintiff.  Leave has been given to amend both of these pleadings in the course of the trial.

1. At the outset of the trial I was informed by counsel who at that time appeared for the defendant that it was agreed that the defendant would have the carriage of the action against the plaintiff and the defendant by counterclaim (a principal of the plaintiff who is said to be liable as a participant in misleading and deceptive conduct under s.52 of the Trade Practices Act). I was also informed that the quantum of the plaintiff’s claim was agreed upon.

1. The substantive issues at the trial have been those raised in the defence and counterclaim and the reply and answer.

1. The defendant has in addition to the matters raised by way of counterclaim raised issues which deny the plaintiff’s right to recover.

1. After the second day of the hearing the trial was adjourned because of  problems which had arisen with the pleadings and on the resumed hearing, Geoff Mitchell (Mitchell) the father of the defendant was given leave to appear on the defendant’s behalf.

1. Mitchell was the person who had all of the relevant dealings with the plaintiff on behalf of his…