Rowland v Stevenson - [2006] NSWSC 1339

NEW SOUTH WALES SUPREME COURT

CITATION: Rowland v Stevenson [2006] NSWSC 1339

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 2884 of 2004

HEARING DATE{S): 10 and 11 July 2006

DECISION DATE: 05/12/2006

PARTIES:
Neil Mark Rowland (Plaintiff)
Stuart Orr Stevenson (Defendant)

JUDGMENT OF: Associate Justice McLaughlin

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Mr. D. Bernie (Plaintiff)
Mr. S. Philips (Defendant)

SOLICITORS:
ES Lawyers (Plaintiff)
Foulsham & Geddes (Defendant)

CATCHWORDS:
Wrongful detention. Compensation. Inquiry to assess damage to or diminution in value of a yacht.

ACTS CITED:

DECISION:
Consonant with the task committed to me by the orders of Gzell J of 21 April 2005, I make the following orders (subject to the correction of any arithmetical errors): (1). Upon inquiry, I assess the damage to or the diminution in value of the French Bee caused while in the wrongful custody of the First Defendant in the amount of $98,662. (2). I order that the First Defendant pay to the Plaintiff compensation in the sum of $98,662. (3). I order that the First Defendant pay the costs of the Plaintiff of the inquiry before me in respect to the foregoing assessment.

JUDGMENT:

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Tuesday, 5 December 2006

2884 of 2004 NEIL MARK ROWLAND –v- STUART ORR STEVENSON

JUDGMENT

HIS HONOUR: These proceedings concern a yacht known as French Bee.
After a contested hearing occupying three days in March 2005 Gzell J published his reserved judgment on 14 April 2005. Subsequently His Honour on 21 April 2005 made orders to give effect to his reasons for judgment. Orders 4 and 5 of those orders are as follows:
(4).The Master conduct an inquiry to assess any damage to or diminution in value of the French Bee caused while in the wrongful custody of the first defendant.
(5).The first defendant pay to the plaintiff compensation as so assessed by the Master and the costs of such assessment.
The circumstances which have given rise to these proceedings and the details of the wrongful conduct of the First Defendant, Stuart Orr Stevenson (to whom I shall hereafter refer as “the Defendant”), in depriving the Plaintiff, Neil Mark Rowland, of his possession of the French Bee (which belonged to the Plaintiff) are set forth in detail in the reasons for judgment of Gzell J. It is unnecessary for me here to rehearse those circumstances and details.
The Plaintiff relied upon the following affidavits:
Neil Mark Rowland, 2 June 2002
Craig Richard Armour, 6 June 2005
Michael Vincent Bartley, 31 May 2005
Michael Vincent Bartley, 10 August 2005.
The evidence of the Plaintiff and of Mr Armour essentially relate to their observations concerning the state of the yacht before and after each of the occasions when the Defendant unlawfully took possession of it, and to missing personal items when the yacht was finally returned to the Plaintiff in May 2005. Those items were valued by the Plaintiff in a total amount of $2,130.
The evidence of Mr. Bartley, a shipwright, was in the nature of expert evidence. He had prepared a cost report “determining the damage occasioned to French Bee by the Defendant whilst he was in possession of the boat and a quote for the costs of repairs to bring the boat to the condition it was prior to the Defendant taking possession on 13 May 2004”. Those costs, including mooring and berthing fees, were in a total amount of $109,486. When the value of the missing personal items ($2,130) is added to that figure, the claim of the Plaintiff totals $111,616.
The Defendant relied upon the following affidavits:
Stuart Orr Stevenson, 30 June 2005
Geoffrey Richard Foley, 30 June 2005
Christine Mary Clarke, 30 June 2005.
Each of the deponents of the foregoing affidavits was cross-examined on behalf of the opposing party.
The parties were in general agreement that the following issues appear on the affidavit material:

The state of the yacht before and after the possession by the Defendant
What items are allowable in respect of the damages assessment
What amounts are allowable in respect of those items.

I have had the benefit of receiving a written outline of submissions from Counsel for the Plaintiff. That document will be retained in the Court file.
In respect to the state and condition of the yacht before it was wrongfully taken by the Defendant on three separate occasions the evidence was essentially that of the Plaintiff and that of the Defendant.
The evidence of those two witnesses was in conflict in a number of respects. It becomes necessary for me, in resolving that conflict, to express my views on the credit of those witnesses.
The Plaintiff gave evidence in a frank and forthright fashion, conceding, where appropriate, several inaccuracies in his affidavit evidence.
The evidence of the Plaintiff was consistent with that of other witnesses who gave evidence on his behalf, especially that of Craig Richard Armour, who had been a crew member on the yacht and who had participated in its retrieval after it had be wrongfully taken by the Defendant on the first occasion.
The Defendant, on the other hand, was not a particularly impressive witness. He adopted a somewhat cavalier attitude in responding under cross-examination to questions regarding evidence adduced for the Plaintiff. He offered inconsistent explanations as to why he had removed the name French Bee from the yacht. He constantly responded with the word “rubbish” to questions put to him in cross-examination. His responses to questions concerning the balloon payment owing to Esanda and his stated understanding of the concept of the financial arrangements which he had with Esanda and Esanda’s right to repossess the yacht were quite unbelievable. His use of the disparaging phrase “plastic yacht” to describe the French Bee (which had originally been purchased for more than $300,000) encapsulated the attitude of the Defendant to this property of the Plaintiff. The Defendant’s volunteered reference to his “loving wife” throwing him out of his house did not favourably impress the Court. Neither did the Defendant’s conduct in flinging an affidavit onto the Bar table as he was leaving the witness box.
Where the evidence of the Plaintiff and the evidence of the Defendant were in conflict, and where, apart from the oral testimony of each, there was no other evidence from any other witness or from any documentary material, I prefer the evidence of the Plaintiff to that of the Defendant.
The Plaintiff called expert evidence from Michael Vincent Bartley. Mr. Bartley was a well qualified shipwright, who, through his company, Michael Bartley Shipwrights, operates a shipwright business, restoring and repairing boats. Not only did Mr. Bartley give opinion evidence concerning the repairs required to be effected to the subject yacht and the cost of such repairs but also Mr. Bartley was in a position to give direct evidence from his own observations (observations made both before and after it had been taken by the Defendant) concerning the condition of the yacht before the Defendant unlawfully and wrongfully took it from the Plaintiff.
Concerning items of property which the Plaintiff said had been on the yacht before he had been wrongfully deprived of its use and possession, the Defendant said that he had no knowledge of those items and that he had not removed them. It is immaterial whether the Defendant personally removed the items. If they were there when he wrongfully took the yacht and they were not there when it was returned to the Plaintiff, the Defendant is responsible for their loss. I am satisfied from the evidence of the Plaintiff, supported by the evidence of Mr. Armour, that the items which were claimed by the Plaintiff in paragraph 16 of his affidavit of 2 June 2005 were on the yacht when it was taken by the Defendant. Accordingly, the Defendant is liable to pay to the Plaintiff by way of compensation the costs attributed to those items, in a total amount of $2,130.
In response to the expert evidence offered by Mr. Bartley on behalf of the Plaintiff, the Defendant proffered evidence from Geoffrey Richard Foley. That evidence was proffered in the nature of expert evidence. Mr. Foley’s qualifications relied upon to substantiate his status as an expert in the field of maintenance and restoration of yachts were essentially that he had had long experience in sailing yachts and owning yachts. He was not and never had been a shipwright. In the face of opposition by the Plaintiff, I admitted the opinion evidence of Mr. Foley, which was largely in the nature of a response to the opinion evidence of Mr. Bartley.
It will be appreciated that the fact that I allowed Mr. Foley to give opinion evidence does not of itself mean that Mr. Foley’s evidence must be treated as having equal weight to that of Mr. Bartley.
I regarded Mr. Bartley as a well qualified witness, with expertise in the area in which he was offering opinion evidence, being that of a shipwright, and with substantial practical experience in the field of maintenance, repair and restoration to yachts, including yachts such as the French Bee. (That vessel is of the kind known as a Beneteau yacht, the name apparently deriving from the town of the same name in France.) The fact that the present was the first occasion upon which Mr. Bartley had given expert evidence in Court did not in my view derogate from the weight to be attributed to his evidence. Indeed, for someone who was giving expert evidence, by way of affidavit and by way of oral evidence under cross-examination, for the first time, I was very favourably impressed by the quality of Mr. Bartley’s evidence and by his responses in the witness box under cross-examination.
The fact that Mr. Bartley had received assistance from John Wigan (of John Wigan & Associates, management consultants) in preparing his report, and that, at times, Mr. Bartley used phrases identical to those appearing in Mr. Wigan’s letter of 19 May 2005 (Exhibit 4) (such assistance and such use of identical phrases being conceded by Mr. Bartley) do not in my view derogate from the weight to be given to Mr. Bartley’s evidence.
Where the opinion evidence of Mr. Bartley was in conflict with the opinion evidence of Mr. Foley, I preferred that of Mr. Bartley.
The Defendant disputed a number of specific items in Mr. Bartley’s cost report. I shall proceed to deal seriatim with those disputed items.
It was submitted on behalf of the Defendant that the following items would require to be maintained on a fairly regular basis, every year or so, and that the conduct of the Defendant had not affected the responsibility of the Plaintiff for these items of maintenance:
Item  Amount
19.         Services all deck winches  $673
20.         Strip and re-vanish timber toe rails                 $3,018
22.         Clean, service and test operate electric
anchor winch  $165
23.         Remove, de-rust, clean and stow anchor
  chain  $218
26.         Charge or replace 2 No. Main batteries  $146
27.         Check and replace all suspect running
  rigging and all ropeage  $2,420
28.         Remove mast, die-check all standing rigging
  and check and re-step  $2,700
29.         Complete service to main engine,
  propeller and shaft and bearings, etc  $539
30.         Slip yacht, check hull, keel, rudder,
  propeller, anode, repair as required and
  antifoul bottom  $3,002
31.         Check and prove suspect steering mechanism             $660
33.         Check and prove stove and gas bottle
  operation  $146
34.         Check and prove bilge pump operation  $146
35.         Check and prove refrigerator operation  $146
36.         Pump out all water lying in bilges                   $73
37.         Inspect/service 2 No. 0.9 kg fire extinguishers             $30
38.         Replace MT300 EPIRB with 406 MHZ type                $709
39.         Replace flares to Category 3 compliance   $297
40.         Check keel and bolts and clean all bilges  $291
41.         Clean mould and stains to all interior
  surfaces and heads and WCs  $609
The foregoing complaint of the Defendant concerning these items can be easily disposed of. Whether or not these were items of maintenance which were required to be attended to every year or so, the Plaintiff was deprived of the use, benefit and enjoyment of the boat for eleven months. For that period the maintenance should have been attended to, but was not. It subsequently needed to be attended to, and the Plaintiff must bear the cost, although he had received no benefit in return. I am satisfied that (subject to the adjustment of several specific amounts claimed, to which I shall shortly refer) the cost of the foregoing items of maintenance should be borne by the Defendant, who had the wrongful possession of the yacht for that period of eleven months.
The Defendant disputed the following specific items.
Item 1. Repair damage to hull at transom and
topsides, restore signage and flagstaff bracket.
Cut and polish topsides and transom $6,266
It was submitted on behalf of the Defendant that no more than $2,000 should be allowed in respect to this item. The basis of this submission was that Mr. Bartley had said that one-third of the labour on this item related to the transom (for which the Defendant accepts liability), whilst the balance relates to the topside (for which liability is disputed, upon the basis that work on the topside was maintenance which should be performed on an annual basis).
For the reason which I have already expressed regarding items of maintenance which should have been attended to during the period of eleven months while the Plaintiff was wrongfully deprived of the use, benefit and enjoyment of the boat, I propose to allow the entire amount claimed, being $6,266.
Item 10. Replace damaged bunk mattresses, seats
and back rests throughout yacht $12,650
It was submitted on behalf of the Defendant that dry cleaning of these upholstered items should have been adequate. It is quite clear from the evidence of Mr. Bartley that the damage to these items was such that these items required total replacement, and that no amount of dry cleaning would remedy that damage. Accordingly, the full amount claimed should be allowed.
Item 11. Repair broken handle to aft WC and prove
operation to aft and for-ard heads $407
Despite the submission on behalf of the Defendant that this was a pre-existing defect in the boat, there is no evidence in support of that submission, apart from the otherwise unsupported evidence of the Defendant. I prefer the evidence of the Plaintiff. Accordingly the amount claimed will be allowed.
Item 15.Repair water leak at overhead
light starboard side opposite galley $6,930
I am satisfied from the evidence on behalf of the Plaintiff that the Defendant should be liable for this item.
Item 20. Strip and re-vanish toe rails $3,018
It was submitted on behalf of the Defendant that this was a maintenance item, which had been attended to by Mr. Bartley in March 2004, shortly before the Defendant wrongfully obtained possession of the yacht.
It is quite clear that the Defendant throughout the year during which he wrongfully withheld possession of the yacht deliberately chose not to attend to any part of the maintenance. If he had done so, then various maintenance items would not subsequently have needed to be attended to. I am satisfied that the Defendant is liable in respect to this item regarding the toe rails, and that the full amount claimed should be allowed.
Item 21. Repair/replace all opening skylights $18,391
It was submitted on behalf of the Defendant that the replacement of skylights should be treated as normal wear and tear resulting from ultraviolet light, and that no part of this item should be allowed. Alternatively, the Defendant submitted that there should be allowed no more than an amount representing the diminution in the value of the boat over a period of 12 months, being calculated as about one twelfth of the working life of the boat.
I am in agreement that the total cost of the repair and replacement of the skylights, in what is not an inconsiderable amount, should not be borne solely by the Defendant. It seems to me that the appropriate course, accepting the assumption of the Defendant that the working life of the boat is about 12 years, is that for the period of about one twelfth of that working life, the Defendant should bear the responsibility. That is, the Defendant should be liable for one twelfth of the amount claimed, being $1,533.
Item 25. Service/replace radios at chart table $6,000
The prices set forth in the quotation from Muir Marine (which is annexure B to the affidavit of Paul Joseph Dillon, the solicitor for the Defendant, of 5 July 2005) reveal that the quotation for the radios is significantly overstated. An appropriate allowance should be for the amounts set forth in the foregoing annexure B in a total of $113.45.
Item 38. Replace MT300 EPIRB with 406 MHZ
type $709
Similarly, the foregoing annexure to Mr. Dillon’s affidavit discloses that an appropriate cost for this item is $197.50.
Item 39. Replace flares to Category 3 compliance $297
The number of flares is not specified in Mr. Bartley’s report. The foregoing annexure to Mr. Dillon’s affidavit discloses the appropriate cost of flares as being $57.50 each. In the absence of any specific evidence as to the number of flares, it seems to me that the Plaintiff should not be entitled to the cost of the replacement of more than two flares (that being the minimum of the plurality referred to in Mr. Bartley’s report). At $57.50 each, the appropriate cost is $115, rather than $297.
Item 42. Missing sails and sail bags - replacement
Mainsail $6,380
It emerged that the mainsail had been damaged, rather than being missing. In consequence, the claimed amount of $6,380 should be rejected. The claimed amount of $264 for repairs to the existing mainsail on the boom should be included in the cost payable to the Plaintiff.
Item 43. Replace missing boat cover $2,750
It was submitted on behalf of the Defendant that there was no evidence as to the existence of this boat cover, which is now alleged by the Plaintiff to have been missing when the yacht was returned to him. The Defendant in his evidence denied that there was ever such a boat cover. Mr. Armour under cross-examination said that he could not recall seeing one. I have already expressed my view concerning my preference for the evidence of the Plaintiff to that of the Defendant. The fact that Mr. Armour could not recall seeing such a boat cover, does not, of course, mean that the boat cover was not there. The Plaintiff himself asserts that it existed. Upon balance, I am satisfied that the boat cover existed before the Defendant wrongfully took possession of the yacht. It certainly was not there when the yacht was returned to the possession of its owner, the Plaintiff. It follows, therefore, that the Plaintiff is entitled to the amount claimed in respect to this item, being $2,750.
In respect to all the items which are disputed by the Defendant, it must be appreciated that the Defendant was not using or sailing the yacht during the period of eleven months whilst he was wrongfully retaining possession thereof. The e-mail of 27 May 2004 (Exhibit C) from the Defendant to the Plaintiff clearly reveals an ulterior motive on the part of the Defendant in wrongfully taking possession of the yacht, that ulterior motive being to put pressure upon his then wife (the Plaintiff’s mother) in respect to the matrimonial problems and property disputes between her and the Defendant. If the Defendant had been using or sailing the yacht during the relevant period, then it is possible that a number of maintenance items might properly be attributed to normal wear and tear. But there was no normal wear and tear of the yacht during that period. The Defendant was allowing the yacht deliberately to fall into a condition of dereliction. Indeed, as has already been observed, the Defendant deliberately effected the obliteration of the name French Bee from the bodywork of the yacht.

In my conclusion the Defendant should be held liable for all maintenance costs during the period while the boat was wrongfully in his possession, not just (as the Defendant has submitted) for pro rata payments in respect to such maintenance costs.
To summarise, therefore, the amount claimed by the Plaintiff will be reduced in respect to the following items.
Item
42.         Mainsail missing, claim for $6,380 is rejected
25.         Service/repair radios at chart table,
  is reduced from $6,000 to $113.45, being a
  reduction of $5,886.55
38.         Replace MT 300 EPIRB with 406 MHZ
  type, is reduced from $709 to $197.50, being a
  reduction of $511.50
39.         Replace flares to Category 3 Compliance     ,
  reduce from $297 to $115, being a
  reduction of $176
It follows, therefore, that, in accordance with the foregoing calculations, the total amount claimed by the Plaintiff of $111,616 will be reduced by $12,954, to $98,662.
Consonant with the task committed to me by the orders of Gzell J of 21 April 2005, I make the following orders (subject to the correction of any arithmetical errors):
(1).Upon inquiry, I assess the damage to or the diminution in value of the French Bee caused while in the wrongful custody of the First Defendant in the amount of $98,662.
(2). I order that the First Defendant pay to the Plaintiff compensation in the sum of $98,662.
(3).I order that the First Defendant pay the costs of the Plaintiff of the inquiry before me in respect to the foregoing assessment.

**********

LAST UPDATED: 07/12/2006