Stoker v Picken

Case [2012] FCA 1315

FEDERAL COURT OF AUSTRALIA

Stoker v Picken [2012] FCA 1315

Citation: Stoker v Picken [2012] FCA 1315
Appeal from: Stoker v Mark Anthony Picken T/AS Gold Coast RV and Boating Services [2009] FMCA 839
Parties: BRIAN JAMES STOKER v MARK ANTHONY PICKEN
File number: QUD 235 of 2009
Judge: DOWSETT J
Date of judgment: 26 November 2012
Catchwords:

LIEN – claim for storage charges – whether storage charge claim relinquishes right to lien – whether storage charges were linked with lien – whether wrongful claim extinguishes rightful claim;

LIEN – possession of vessel – attempt at auction – storage of vessel – whether respondent had transferred possession of vessel to auction house thus relinquishing right to lien – whether respondent had transferred possession of vessel to third party whose land vessel was stored on thus relinquishing right to lien;

QUANTUM MERUIT – challenge to amount actually owed after repair work completed on boat – contract to do repair work with respondent – whether quantum meruit should be reduced as repair work had been subcontracted out and completed by third party

Legislation:

Disposal of Uncollected Goods Act 1967 (Qld) ss 4, 5

Evidence Act 1995 (Cth)

Cases cited:

Donald v Suckling [1866] LR 1 QB 585 cited
Gunnedah Municipal Councilv New Zealand Loan and Mercantile Agency Company Ltd [1963] NSWR 1229 cited
Somes v British Empire Shipping Co (1860) 8 HLC 337 cited
Bowenbrae Pty Ltd & Anor v Flying Fighters Maintenance and Restoration Pty Ltd [2009] QDC 91 cited
Albermarle Supply Co Ltd v Hind & Co [1928] 1 KB 307 considered
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1977-1978) 138 CLR 423 cited
Hill & Sons Ltd v London Central Markets Cold Storage Co Ltd (1910) 26 TLR 397 cited
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 cited
TheBritish Waggon Co v Lea & Co (1880) 5 QBD 149 cited
Robson v Drummond 2 B&Ad 303 cited
Alati v Kruger (1955) 94 CLR 216 cited

Sykes EI and Walker S, The Law of Securities (5th ed, LawBook Co., 1993)  
Dates of hearing: 11 July 2011 and 15 December 2011
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 59
Counsel for the Appellant: Mr S Fisher
Solicitor for the Appellant: Neumann & Turnour
Counsel for the Respondent: The respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 235 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

BRIAN JAMES STOKER
Appellant
AND:

MARK ANTHONY PICKEN
Respondent

JUDGE:

DOWSETT J

DATE OF ORDER:

26 NOVEMBER 2012

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the respondent have liberty to apply within seven days for any order concerning costs or expenses which he may have incurred in connection with these proceedings.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND…

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Stoker v Picken [2012] FCA 1315
Case
[2012] FCA 1315
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Stoker, brought an appeal against the decision of a Federal Magistrate regarding a dispute with the respondent, Picken, over the possession and storage charges of a motor vessel. The vessel, a Whitley Cruisemaster, was initially repaired by Picken under an agreement with Stoker. After completing the repairs, Picken invoiced Stoker for $7,440.97. However, when Stoker failed to pay the invoice, Picken stored the vessel, charging additional storage fees and seeking payment through the court. The primary issues before the court were whether Picken's claim for storage charges relinquished his right to a lien on the vessel, whether Picken had transferred possession of the vessel to an auction house or a third party, and if the claim for quantum meruit should be adjusted due to the subcontracting of repair work.

The court examined whether Picken's claim for storage charges was connected to his lien on the vessel. It was determined that Picken had not relinquished his right to a lien simply by claiming storage charges. Additionally, the court found that Picken had not transferred possession of the vessel to the auction house or a third party, as he maintained the right to sell the vessel to recover his charges. Regarding the quantum meruit claim, the court concluded that the amount owed should not be reduced because the repair work had been subcontracted and completed by a third party, as the contractual obligation to pay remained with Stoker.

Ultimately, the appeal was dismissed, and the respondent was granted liberty to apply for any orders concerning costs or expenses within seven days of the decision. The court's reasoning hinged on the interpretation of contractual rights and the preservation of liens and possession rights under the circumstances presented.

Orders

Orders of the court

1. the appeal be dismissed; and

2. the respondent have liberty to apply within seven days for any order concerning costs or expenses which he may have incurred in connection with these proceedings.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

These proceedings were originally commenced in the admiralty jurisdiction of this Court. However, after granting interlocutory relief, I remitted the matter to the Federal Magistrates Court. Different aspects of the matter were heard and determined by two different Federal Magistrates. This is an appeal from the second of those decisions.FACTUAL BACKGROUND The appellant owns a Whitley Cruisemaster motor vessel (the “vessel”). The respondent is a tradesman, specializing in the repair of motor vessels. On or about 29 November 2007, the appellant and the respondent agreed that the respondent would carry out repairs to the vessel. The work was completed and paid for on or about 17 December. On 24 December 2007, the appellant advised the respondent that the vessel had broken down. In early January of the following year, he delivered the vessel to the respondent’s premises. The parties agreed that the respondent would carry out additional repairs. These repairs were completed on or about 15 January 2008. On 15 January 2008 the respondent rendered an invoice in the amount of $7,440.97 (including GST). The respondent says that the appellant told him that he could not pay because he had lost his money on the stock market. The appellant contends that the respondent did not permit him to inspect the vessel to ascertain whether the repairs had been properly completed, and that he therefore declined to pay. The respondent denies this allegation. On 22 January 2008 the respondent sent the following email to the appellant:As payment for your boat repairs was to be made on invoice date 15/01/2008 2008 and has still not been made by 4.30 pm on 22/01/2008 you leave me no [a]lternatice [sic]. I now have to put your boat into storage at your expence [sic] at 100 dollars per day plus G.S.T. payed [sic] weekly plus towing to yard and return to Gibbs St at 80 dollars per hr plus G.S.T. There will also be a sercharge [sic] of 2.5 percent on all moneys owing from 15/01/2008 as you have not made any attempt to pay the boat is going to storage 23/01/2008 at 8.30 am. If you pay before 8.30 am 23/01/2008 there will be no extra charges. On 29 January 2008 the appellant commenced proceedings in the Small Claims Tribunal, seeking relief from payment of the respondent’s bill and return of the vessel. On 3 March 2008 that application was dismissed. On 11 March 2008 the respondent indicated that if the bill was not paid, he would seek to sell the vessel. By this time, he was also claiming towing expenses, storage charges and an amount which seems to have represented his “costs” incurred in the Small Claims Tribunal. As far as I can see, that claim was not based on any order made by the Tribunal. On 19 March 2008, the respondent issued a notice pursuant to the Disposal of Uncollected Goods Act 1967 (Qld) (the “Uncollected Goods Act”). In certain circumstances that act confers a power of sale upon a bailee to enable recoupment of the bailee’s charges. Thus it confers a power of sale on a person who, as I shall demonstrate, would otherwise only be entitled to retain possession of the bailed goods until he or she was paid. The purported effect of the notice was that if the appellant did not pay the amount of $16,493.81 and take delivery of the vessel within six months, it would be sold.

Evidence

Evidence Before The Court

In my view this defence is misconceived.EVIDENCE OF VALUE The appellant submits that the Federal Magistrate erred in law in not accepting the evidence of Mr Lockyer, a marine surveyor, as to the value of the vessel. The evidence was relevant to the appellant’s claim that as a result of the respondent’s allegedly unlawful detention of the vessel, he had lost the opportunity to sell it at a time when its market value would have been higher than at the date of trial. His Honour seems not to have accepted that the witness was an expert, capable of giving opinion evidence as to the value of the vessel. This conclusion appears to have been based upon the fact that the witness said that there were no formal qualifications for the valuation of marine assets, and that he had based his evidence as to value on one other sale. It may be that the Federal Magistrate correctly concluded that the evidence did not establish that the witness was a person entitled to give expert evidence. However one might have expected references to the relevant provisions of the Evidence Act 1995 (Cth). The appellant has not pointed to aspects of the evidence upon which he relies in order to demonstrate that the evidence ought to have been received. There was also evidence as to value from Mr Parker, a diesel engineer and mechanic. The appellant submits that his Honour overlooked this evidence. As I have concluded that, for other reasons, the appeal should fail, I need not consider these matters.COSTS Finally the appellant claims that the Federal Magistrate erred in law in his calculation of the amount of the appellant’s costs “thrown away on 30 March 2009”. It seems that on 31 March 2009, Federal Magistrate Jarrett ordered that the respondent pay the appellant’s costs thrown away by the adjournment. If not agreed, the costs were to be fixed at the resumption of the adjourned hearing. As I have said, the hearing on 30 March was taken up with argument on the estoppel question, on which the respondent was successful. However it seems that the respondent was not able to proceed to prove his claim and so the matter was adjourned to 25 May 2009. I would have thought that the costs thrown away were the costs of and incidental to the appearance on 31 March, not those attributable to the hearing on 30 March. I have already set out his Honour’s observations concerning the calculation of the costs to be awarded. It seems that his Honour considered that he was assessing the costs incurred in connection with the hearing on 30 March and that the respondent was to pay them although, of course, he had succeeded on the issue ventilated on that day. It may be that his Honour was simply making a rough assessment of the costs “thrown away” and was a little loose in his language. However that matter is not the basis of the appellant’s criticism of the decision. He complains that he was not allowed amounts incurred in having professional witnesses available on 30 March. I have been referred to no evidence as to the incurrence of liability for those outgoings or as to quantum. I do not know how the figure of $15,000 is calculated. I see no basis for inferring that the exercise of the discretion as to costs has miscarried.ORDERS

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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