Svitzer Salvage Australasia Pty Ltd v Trident Australasia Pty Ltd
[2012] NSWDC 146
•29 June 2012
District Court
New South Wales
Medium Neutral Citation: Svitzer Salvage Australasia Pty Ltd v Trident Australasia Pty Ltd [2012] NSWDC 146 Hearing dates: 27, 28 and 29 February; 4 April 2012 (oral submissions) Decision date: 29 June 2012 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the plaintiff for USD $416,307.07.
(2) Defendant pay plaintiff's costs.
(3) Liberty to restore in relation to interest and costs.
(4) Exhibits retained for 28 days.
Catchwords: CONTRACT - contract to provide urgent salvage services - identity of party contracting for the services - undisclosed principal Legislation Cited: - Cases Cited: Carminco Gold & Resources Ltd v Findlay & Co Stockbrokers (Underwriters) Pty Ltd (2007) 243 ALR 472
Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490
McCartney v Orica Investments Pty Ltd [2011] NSWCA 337
Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388
Teheran-Europe Co Ltd v S T Belton Tractors Ltd [1968] 2 QB 545
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)Texts Cited: - Category: Principal judgment Parties: Plaintiff: Svitzer Salvage Australasia Pty Ltd
Defendant: Trident Australasia Pty LtdRepresentation: Plaintiff: Mr E Cox
Defendant: Mr H Woods
Plaintiff: Norton White
Defendant: Owen Hodge Lawyers
File Number(s): 2010/392856 Publication restriction: None
Judgment
Introduction
The plaintiff by statement of claim filed on 25 November 2010 seeks payments of the sum of US $416,307.07 plus interest and costs, being charges made by the plaintiff arising out of a contract with the defendant for the provision of salvage services entered into on 23 May 2009.
The sole issue in these proceedings is whether there was a disclosed principal in respect of the contract to provide salvage services. The plaintiff says that Mr Barooni contracted work on behalf of Trident Australasia Pty Ltd ("Trident"). The defendant claims that Mr Barooni was contracting the work for another company, T-D Joint Venture Pty Ltd ("TDJV"), a joint venture between Trident and Darwin Offshore, and that Mr Barooni disclosed this information in some detail to Mr Timofei.
The contract was entered into orally by Mr Oliver Timofei, on behalf of the plaintiff, and a Mr Mehran Barooni, in circumstances of great urgency. Many of the discussions were by telephone, late at night.
The reason Mr Barooni contacted the plaintiff was because a barge, the APC Aussie 1 ("Aussie 1"), was in difficulties on the high seas and could capsize. Mr Barooni had received advice at about 5.00pm on 22 May from the Master of the towing vessel, the "Lewek Kea", that it was encountering serious problems in a storm off the coast of Newcastle. The Lewek Kea was towing the Aussie 1 from southern New South Wales to Singapore. The Master of the Lewek Kea asked Mr Barooni to attempt to mobilise a vessel to standby and to takeover the towing of the Aussie 1.
Mr Barooni made a series of urgent telephone calls, trying to find a boat which could reach the Lewek Kea in time. After speaking to employees of other companies in the Svitzer group, he was given Mr Timofei's name as the person to contact.
I have set out in detail the circumstances in which Mr Barooni and Mr Timofei entered into the salvage contract. In support of his version of events, Mr Timofei produced his daily diary, in which he records notes from all of his conversations, not only with Mr Barooni but with other customers of the defendant with whom he had dealings over the same period. Mr Barooni does not have any notes of his conversations.
The issues in these proceedings
The statement of claim asserts that the defendant entered into the contract as agent for TDJV as an undisclosed principal, and is therefore liable for amounts payable under the contract in its capacity as agent, in that the defendant did not disclose to the plaintiff at any time prior to the date of the contract or its performance, either the existence or the name of the undisclosed principal. Claims for equitable estoppel (paragraphs 18-23 in the statement of claim) and misleading or deceptive conduct (paragraphs 24-31 of the statement of claim) are not pressed. Quantum is not in issue.
Both Mr Cox and Mr Woods (T 5-6) agreed, in their opening remarks, that the very narrow issue was largely a question of credit and whose version of events I accepted. Both parties agree that the central issue of fact is whether I prefer the evidence of one witness over another. In assessing the evidence of Mr Barooni and Mr Timofei, I have had regard to the careful analysis of the proper assessment of credit evidence provided by Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74]:
"[73] There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" ("The Business of Judging", Oxford 2000, pages 3ff; Current Legal Problems, vol 38 Stevens & Sons Ltd 1985 page 1-27). Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not.
(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness's evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.
[74] Lord Bingham then added these observations:
"In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented....
... so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such.""
In addition, I have carefully reviewed the principles enunciated by The Honourable Justice Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales <
The initial contact between Mr Barooni, Mr Heffernan and Mr Burns
The defendant, Trident, had entered into a contract for the provision of its services to a joint venture, TDJV (T 109), in August 2007. It is not in dispute that TDJV, not Trident, was the charterer of the APC Aussie 1 and of the tug vessel, the Lewek Kea, these charter agreements being entered into in June 2008.
The defendant places importance upon the fact that Mr Barooni had prior dealings on behalf of TDJV with another Svitzer company, Svitzer Australia Pty Ltd ("Svitzer Australia") in Eden in 2008 and that this was why he contacted Mr Steve Heffernan when the Aussie 1 got into trouble. The Port of Eden, where Mr Heffernan was situated, was to be used to mobilise and demobilise vessels by the joint venture parties. Mr Barooni gave evidence that he told Mr Heffernan that TDJV would be the contracting party for any services to be provided by Svitzer Australia. Mr Heffernan said he could not recall a conversation as specific as this (T 113 line 35). According to Mr Barooni's affidavit sworn 27 September 2011, he was transferred to Victoria in April 2009 and then to New South Wales. He also said he liaised with Steve Heffernan (paragraph 14) on behalf of TDJV since early 2008 in anticipation of the Longtom project. Although there were discussions, the joint venture only began using Svitzer Salvage in relation to departure of the Lewek Kea from Eden (annexures 1 and 2 to the affidavit of Mr Barooni).
Mr Barooni's claim was that in late April 2009, Mr Heffernan knew that TDJV was the EPCI contract holder for the Longtom project and understood the role of the joint venture partners, even though Mr Barooni always used the defendant's "footers" in correspondence:
"Thereafter, I do not recall there being any confusion as to the identity of the entity contracting with Svitzer notwithstanding that in my email correspondence my default email title stated "Trident Australasia Pty Ltd"." (Affidavit of Mr Barooni sworn 27 September 2011)
This sentence was struck out and leave to adduce oral evidence was granted, but the extent of oral expansion of this conversation was scant and it remains the most helpful way to characterise the defendant's case. In all of his emails, Mr Barooni used his address at Trident Australasia. The draft TDJV service agreement for agency and support works in the Port of Eden was sent to Mr Heffernan on Sunday 7 June 2009, after the events the subject of this litigation occurred (annexures 9 and 10 to the affidavit of Mr Barooni). Mr Heffernan replied on 9 June advising that TDJV had been entered into the Svitzer credit account system and forwarded a set of fees.
Whatever the state of the draft service agreement between Svitzer Australasia and TDJV, there was no contractual agreement between the parties in relation to any of the events relating to salvage. Although Mr Barooni contacted Mr Heffernan soon after he was informed about the Lewek Kea's problems on the evening of 22 May 2009, he was not able to assist from Eden as it was simply too far away. As it was a salvage operation, he advised that another company in the group, Svitzer Salvage (the plaintiff), would be the company to carry out the work. He suggested that Mr Barooni contact John Barry at the Newcastle office of Svitzer Australasia to obtain the contact details for Svitzer Salvage. However, there was no contractual obligation on Mr Heffernan to offer this advice, or upon Mr Barooni to accept it. Mr Barooni did in fact ring four other salvage operators prior to accepting the offer from the plaintiff.
When Mr Barooni spoke to Mr Heffernan about the Lewek Kea, he did not say anything to Mr Heffernan about the TDJV or the Longtom project:
"Q. On the evening of 22 May when you spoke to Mr Heffernan you didn't say anything to him about TD Joint Venture or the Loncom project did you?
A. No, because he knew.
Q. Putting aside what's in Mr Heffernan's head you accept that you said nothing to him on the evening of the 22nd about TD Joint Venture or the Loncom
A. That is correct, that is correct." (T 162)
However, Mr Barooni went on to retract this answer at T 163:
"Q. What was the answer that you wanted to correct?
A. The I don't recall that I spoke to Mr Heffernan, but because I saw because I saw the affidavit of Mr Heffernan, I don't have any reason not to believe it because it would have been possible because he he was the one he was the only person at that time that I knew from Svitzer, so when the name when I found out that there is a tug boat in there are some tug boats in in Newcastle that may be available and they belong to Svitzer naturally I would have had the first phone call to the person that I knew.
Q. Sir, when you responded to this gentleman's question, on 22 May when you spoke to Mr Heffernan you did not say anything, "No, because he knew," was that your actual recollection of a conversation or is that a reconstruction or a guess as to why you would not have said anything to Mr Heffernan?
A. Your question with regard to the conversation that I had with Mr Heffernan?
Q. No, I'm asking you when you replied in relation to the question about what you told Mr Heffernan you said, "No, because he knew." What I'm struggling to do is to reconcile that answer with your statement which you have now repeated that you don't recall speaking to Mr Heffernan. How in those circumstances can you be sure that you did speak to me?
A. That is that is that is what do you call it, deduce, deducing
Q. Deduction?
A. Deduction.
Q. It'd a deduction, so in other words it's not your actual recollection that you didn't need to tell Mr Heffernan because he knew, you're assuming that if you had spoken to Mr Heffernan your reason for not yes, all right.
A. That is correct."
This is different again to the version of events given by Mr Barooni in his affidavit:
"Q. Can you just turn to the text of your affidavit and can you turn up page 7 at paragraph 40?
A. The original affidavit?
Q. The original affidavit, yes, page 7 of the text of the affidavit, not the annexures. You see paragraph 40, you refer to "during those phone conversations", do you see that?
A. That is correct.
Q. Can I suggest to you that the conversation that you say you had there a number of times that is also not an actual recollection, but a reconstruction after the event?
A. I'm not sure I know I'm confident with the difference between these two." (T 163)
Mr Barooni went on to state that he did in fact remember saying the words in his affidavit at T 164:
"Q. Mr Barooni, would you agree that the various conversations that are set out in paragraph 40 that you say you had at some stage on the 22nd a number of times that that is something that you have deduced after the event?
A. Some specifics of that of those conversation I clearly remember. Some specifics of those conversations I deduce I deduct that that might have happened in the natural course of the conversation and some of them I can't recall.
Q. What I am suggesting to you to be clear is the precise words that you set out in paragraph 40 of your first affidavit those words are ones that you have deduced rather than actually remembering saying?
A. No, I actually remember saying that."
Mr Heffernan was, however, quite definite in his affidavit about his description of this conversation:
"(25) When I received the telephone call from Mr Barooni, it was after hours and I was driving my car. I did not have my Emergency Contact list to hand. I cannot recall exactly who I referred Mr Barooni to for further assistance but I believe it was likely to have been Mr John Barry who was the Regional NSW Manager of SVITZER Towage. I provided Mr Barry's contact details because I believed that Mr Barry would be able to provide Mr Barooni with contact details for SVITZER Salvage. As I have no involvement with SVITZER Salvage, I did not know their contact details without looking them up and I could not therefore provide contact details for SVITZER Salvage to Mr Barooni at that time.
(26) During my conversation with Mr Barooni, words to the following effect were spoken:
Mr Barooni: "The "AUSSIE 1" and the "LEWEK KEA" are in trouble off Newcastle. The "LEWEK KEA" has suffered engine failure. Are you able to assist from Eden?"
Me: "No, this is clearly well beyond the capability of our operations in Eden and we are too far away in any event. You will need to speak to someone at SVITZER Salvage. I don't have my Emergency Contacts list with me, but you can call John Barry at our Newcastle office and he can give you the contact details for SVITZER Salvage."
(27) Subsequent to that telephone call, I did not have any involvement whatsoever in relation to the circumstances giving rise to these proceedings. I was never asked to nor agreed to provide any services or assistance to the "AUSSIE 1", whether pursuant to the Services Agreement or otherwise. I was never asked to and did not purport to appoint any other SVITZER Group entity to act as the agent for SVITZER Towage in relation to the incident." (Affidavit of Steve Heffernan affirmed 3 November 2011)
There was no question of Mr Heffernan being able to provide any assistance because, as he notes in paragraph 31 of his affidavit, the vessel was so far outside the geographical reach of Svitzer Towage at Eden that all he could do was refer him to Mr Barry.
Although Mr Barooni cannot recall speaking to Mr Burns, Mr Burns from Svitzer said he also received a call from Mr Barooni, about which he made a diary note. Mr Burns' evidence on his topic is contained in his affidavit affirmed on 27 February 2012 as follows:
"(7) In such circumstances, it is my practice to ensure that I obtain details of the organisation requesting assistance and the name and contact details of the representative, so that I can pass them on as required.
(8) I have noted in my notebook:
"Trident Australia
Mehran Bahroone
0434 216 808"
(9) Although I don't have any specific recollection of the telephone call, in accordance with my usual practice and my notes, I assume that I specifically asked Mr Barooni who he represented or worked for and for his contact details and that he replied as is recorded in my notebook."
Mr Barooni was asked if he had contacted Mr Burns and Mr Barooni's response was as follows:
"Q. Similarly, when you rang Mr Burns you said nothing to him about TD Joint Venture or Loncom did you?
A. I cannot recall Mr Burns.
Q. Can I suggest when you introduced yourself to Mr Burns you said, "It's Mr Barooni from Trident"?
A. I cannot recall Mr Burns again." (T 162)
Mr Burns' cross-examination on his topic was as follows:
"Q. You say that on 22 May 09 I was called by Mehran Barooni in relation to assistance required for the Lewek Kea and the Aussie 1 barge?
A. Yes.
Q. Do you have an independent recollection of the conversation or is it just something that you now say having just relied back on that note that's annexed to your affidavit?
A. I have a recollection of that he called me. The detail of what was said, no. I took his name, where he was from and his contact number and passed it to Drew Shannon or to Oliver. Probably to both.
Q. You don't say that your note itself is a complete record of the conversation that took place?
A. It's not. It wouldn't be a complete record, no." (T 119)
Mr Barooni agreed he had not told Mr Heffernan about TDJV:
"Q. On the evening of 22 May when you spoke to Mr Heffernan you didn't say anything to him about TD Joint Venture or the Loncom project did you?
A. No, because he knew.
Q. Putting aside what's in Mr Heffernan's head you accept that you said nothing to him on the evening of the 22nd about TD Joint Venture or the Loncom
A. That is correct, that is correct." (T 162)
This is inconsistent with Mr Barooni's claimed practice to refer to TDJV when he first dealt with any possible contractor.
The portions of Mr Barooni's cross-examination which he referred to this practice are set out above. In re-examination, he provided yet another version, inconsistent with his previous evidence, as to this practice:
"Q. What are those other details that you say you would proceed to?
A. Once you have a potential client that can offer you a vessel, then obviously at that point of time there's a likelihood of coming into a contract, and at that point of time you would explain and you would discuss about the details, like
Q. I'm just asking you what are the details that you were referring to?
A. That the contracting party would be TDJV and that the TDJV is the contractor holder for Nexus Energy and that is the entity that charters the tug and barge and that is the entity that ultimately obviously implicit to that is that this is the entity that would pay your bill.
HER HONOUR
Q. Is that the only information you get? Not the name of your
A. Other kind of information is I mean, where would you like to take over the ship, from the
Q. No, no. About the person. Is the only information that you would give the actual name of the company? You wouldn't, for example, tell them that they were, I don't know, an Australian company or give their address or anything like that?
A. That is correct, yes.
Q. So you'd go out there and you'd have a contract for a substantial sum of money and you wouldn't even tell them your address?
A. Yes, definitely.
Q. Why not?
A. Yes. Say for example the correct title of the company, the address of the company
Q. You'd give that too, would you. I see. So you give the name of the company, the address, what else?
A. ABN number.
Q. ABN number, yes. That's all very helpful.
A. The address of the company, obviously, for and say, for example, who should be titled for the invoice, for the invoice to come.
Q. So you say you give that information right at the beginning so they know exactly who they're dealing with?
A. Pretty much so, but right in the beginning a bigger part of the detail that nobody would be passed to the client, and again you expect that the client would pass the same information, some relevant information to you.
HER HONOUR: Yes, I understand.
WOODS
Q. Mr Barooni, you were asked questions also in relation to the initial telephone calls you had with those companies that possibly might have had a tug available.
A. That is correct.
Q. I think the evidence was that you didn't give the details in relation to TDJV in the first telephone calls with them.
A. Because there was not
Q. Do you remember that question?
A. That is correct, yes.
Q. It was put to you that you didn't follow your usual practice because you didn't follow you didn't tell them that information regarding TDJV at that first telephone call?
A. That is correct.
Q. You said that there is a because.
A. Yes.
Q. What was the because that you wish to tell the Court?
A. Because there was not a likelihood of I mean, of getting a tug from them. If some of them one of them, for example, would say that, yes, I have a tug boat, then obviously you would progress the discussion, but so far as there is no tug boat available, then obviously it doesn't make sense. You start to talking about the contract first. You need to have the asset in place and then talk about the asset hire and other values, details of the contract, including say the this is TDJV who is going to be responsible for the contract." (T 195-196)
This re-examination occurred after Mr Barooni accepted that he had not followed his asserted practice (T 166 line 25 to 167 line 28).
In addition, the note made by Mr Burns in his notebook which gives Mr Barooni's name and phone number and the company name as "Trident Australia" is strong evidence that Mr Barooni in fact said he was from Trident Australia, not "TDJV".
As is discussed in more detail below, Mr Barooni must have kept some form of record of his telephone conversations with all these persons. No documents recording who he spoke to, what information he obtained, and any subsequent discussions he had with his superiors either at TDJV or Trident Australia has been produced.
Mr Barooni's calls to other salvage proprietors
Mr Barooni rang four other salvage companies: PB Towage, Go Offshore, SeaTow and GOC (T 164). Mr Barooni's recollection of what he said to each of these persons is as follows:
"Q. I just want to go back to a topic that I got distracted from which was my own error or no one else's. I was asking you about when you first spoke to PB Towage and the other tug companies and there was PB Towage, Go Offshore, SeaTow and GOC, is that right?
A. Yes, that is not yeah, that is correct.
Q. So that's four different people in addition to the people from Svitzer Australia and Mr Timofei from Svitzer Salvage, correct?
A. That is correct.
Q. You I think said that you don't remember what you said specifically in relation to PB Towage, is that right?
A. I can't remember specifics that I talked to PB Towage, but I can deduct I mean logically what I might have said to them.
Q. At the moment all I am asking you is what you remember rather than what you deduced, do you understand?
A. All right, yeah, okay.
Q. You don't remember what you said to Go Offshore, do you?
A. Not entirely.
Q. You don't remember what you would have said to SeaTow either?
A. Not entirely.
Q. Nor GOC?
A. Not entirely. And this is not a conclusive list, there were plenty there were other
Q. There were more?
A. Yeah, other companies that I may have called.
Q. I take it none of them were told, because they didn't ask, about TD Joint Venture or the Loncom project, is that correct?
A. That is correct.
Q. Do you have your second affidavit? The one you swore yesterday?
A. Yes, this is on the top.
Q. Would you agree that the practice you set out on paragraph 5 of that second affidavit is not one that you followed when contacting salvage companies or tug companies on the evening of 22 May 2009?
A. Which one? Would you please repeat refer to the paragraph?
Q. Yes, I'll do it in a number of steps. You see in paragraph 5 of your second affidavit?
A. 5?
Q. Do you have your second affidavit?
A. Yeah.
Q. Paragraph 5, "Further, it was my usual practice when I first dealt with a possible contractor", do you see that?
A. Yes.
Q. When you were looking for a tug on the evening of the 22nd, GAC, SeaTow, Go Offshore and PB Towage were all potential contractors, correct?
A. Correct.
Q. As was Svitzer Salvage?
A. That is correct, yes.
Q. Would you agree that when you spoke with GAC, SeaTow, Go Offshore and PB Towage, you did not follow the practice that you set out in paragraph 5?
A. No, but there is a because. Can I explain because?
Q. I haven't asked you the because. If Mr Woods wants to ask you about it, that's another matter?
A. Okay.
Q. You didn't say that, is the position?
A. No, no." (T 164-166)
The plaintiff was not the only company approached by Mr Barooni. He was talking to other companies and he was doing so on 22 May 2009 when the situation was less urgent than the next morning. Mr Barooni's focus during these conversations was on finding a tug which was sufficiently close by and appropriate, so he never reached the stage of discussing contracting parties as he went on to say at T 160:
"Q. You would agree that the most importance consideration on the evening of the 22nd was finding a tug to assist?
A. That's right.
Q. That was the primary thing that you wished to communicate to Mr Timofei. Correct?
A. That is correct.
Q. That was the thing that he was trying to do for you?
A. Yeah, yeah, that is correct." (T 160 lines 27-36)
Mr Barooni agreed that he had not disclosed his identity. He said he did not think it was important to discuss the identity of the contracting parties or to mention TDJV at that time:
"Q. If that was something that was important, you would have put it in an email, wouldn't you?
A. I didn't think that it's important at that point of time." (T 189 lines 24-26)
The evidence in relation to these inquires is inconsistent with Mr Barooni's claim that he had a practice of informing persons he was dealing with about such issues of the name of the joint venture as a preliminary matter. While I find it implausible that Mr Barooni would telephone even a company with which his employers had a business relationship, let alone complete strangers, without saying not only who he was, but who he worked for, he appears to have acknowledged that this was the case.
There are no references to TDJV even in Mr Barooni's company documents, such as his four page summary of events prepared for internal purposes (see paragraph 51 of Mr Barooni's affidavit of 28 September 2011), where he refers to "Trident" rather than "TDJV". The following entry appears at 7:30am on Saturday 23 May 2009:
"0730 Trident decided to insert a team of its own or another private competent team on the barge using a helicopter to pass the emergency tow to the tug"
This brings me to the question of what Mr Barooni said when he had his initial conversation with Mr Timofei.
The initial conversation with Mr Timofei
Mr Timofei contacted Mr Barooni by telephone. Mr Timofei's version of this conversation, which is supported by his notes, is as follows:
"I then contacted Mehran Barooni at approximately 20.30 hours, during which a conversation to the following effect took place:
Barooni: "The AHTS "Lewek Kea" is towing an offshore barge, the AHTS lost 1 engine while towing the offshore barge. Her present position is 95 NM NE off Newcastle in position 31 deg 42.6 S - 153 deg 11 E. The "Lewek Kea" while proceeding on 1 engine is making no head way.
We are assessing the market in order to have a tug on-standby near the "Lewek Kea" on short notice to intervene if required during the severe weather conditions she is experiencing right now".
Me: "Based on your request and this further information, we have the tug "Woona" ex Sydney available with departure tomorrow morning soonest. I can offer you this tug".
Barooni: "We require a tug which can be on-site during tonight. Accordingly, a tug from Newcastle would be our preference. A tug ex Sydney with departure tomorrow morning would be too late for the bad weather the "Lewek Kea" is experiencing".
Me: "Owing to our tug availability constraints, this is the most suitable option available from our side".
Barooni: "We will consider our options - however your proposal is a last resort due to the long mobilisation time and late departure".
Me: "I will send you a recap of our conversation. What is your email address?".
Barooni: "You can send it through to [email protected]"." (Affidavit of Mr Timofei affirmed 25 August 2011)
This conversation occurred when Mr Timofei contacted Mr Barooni at 8:30pm on Friday 22 May. He did so after receiving an earlier telephone call from Mr Burns, the General Manager of Marine and Technical of Svitzer Towage. However, Mr Burns did not tell him that it was the Aussie 1 which was in trouble, but the Lewek Kea. Mr Burns' instructions to Mr Timofei were as follows:
"Burns: "We have been notified of a potential salvage incident. The "Lewek Kea" towing the barge "APC Aussie 1" off Newcastle most probably needs assistance. The "Lewek Kea" has experienced a malfunction of her main engine and is having difficulty with the tow. A tug of about 50 tonne bollard pull might be needed. The "Lewek Kea" is an 8,000 brake horse power tug. She is approximately 200 miles South of Brisbane and approximately 30 NM from the coast at Crowley Head. Could you call Mehran Barooni on 0434216808. You will need to check, as I don't think that there will be a great number of tugs available in NSW and QLD.""
Mr Barooni was certain that he said the following words in his initial conversation with Mr Timofei:
"The contracting company will be TD Joint Venture, your purchase orders will be issued to TD Joint Venture, and your invoices should be directed to TD Joint Venture and will be paid by TD Joint Venture." (T 166)
When asked if he said this, Mr Barooni stated in cross-examination:
"You didn't volunteer that, did you?
A. No, I didn't say that.
Q. No?
A. I didn't say, "Paid by TDJV".
Q. You didn't say any of the words that are set out in paragraph 5 of your second affidavit, did you? I will do it precisely?
A. Yeah. Part of that I
Q. You've got
A. Part of that I said it
Q. I am sorry, I've got to stop you there. I am going to put the question again?
A. Yeah.
Q. Just get you to answer that question because there may be some confusion, okay?
A. Yeah.
Q. The reason I am doing that is so that you understand my question and you can answer it in a fair way?
A. Yeah.
Q. You have paragraph 5 there?
A. Yeah, yeah.
Q. It sets out what you say was your usual practice when engaging contractors?
A. Yep.
Q. You say that you would volunteer yourself a particular description when you first speak to someone that you might be retaining, correct?
A. That is correct.
Q. That's what you say your practice was. Mr Timofei called you on the evening of the 22nd because he'd been told of an incident, correct?
A. Yeah.
Q. Your primary focus on that evening was to find a tug, correct?
A. That is correct, yes.
Q. The things you needed to tell him were, "Where's the ship? What is the weather? The extent of the danger"?
A. Yeah, that is correct, yes.
Q. In that conversation you never said the words that are set out in paragraph 5, did you?
A. I didn't say, "Purchase order will be issued to TDJV", but I did say that the company that owned the barge, that operate the barge and the tug are TDJV. I said to him that I mean he asked, "What is TDJV?:" I said it is a joint venture between Trident and Darwin Offshore, a subsidy of Kim Heng who are the owner of the barge and tug. I said to him, owner of the barge is APC Marine and the owner of the tugboat is EMAS TDJV is the bare boat charter and owner of the tug of the barge, and time charter of the barge, of the tugboat." (T 166-167)
Following this conversation, Mr Timofei contacted the general manager of the ports and business operations for Svitzer, Mr Chris Barnes, as to the availability of tugs, and it was at his suggestion that he contacted the Newcastle office of Svitzer Towage. He then contacted the port manager at Newcastle for Svitzer, Mr Keith Wilkes, and the regional manager, Mr Barry, both of whom worked in Newcastle. They advised that the "Woona" in Sydney was the only available tug.
Mr Timofei initially, and incorrectly, assumed from his conversation that Mr Barooni worked for EMAS Offshore Pty Ltd, whom he believed, from the enquiries he had made of the shipping registry, to be the owners of the Lewek Kea. On this basis he sent internal reports to Drew Shannon, Keith Wilkes and Ben Burns in which he referred to Mr Barooni as being employed by EMAS Offshore/EMAS. The text of these documents was as follows:
"Drew,
Below you may find the specs of the LEWEK KEA, it's owned by EMAS Offshore which is quite a bit operator.So understand she is experiencing a mal function to her ME and therefore having less HP available.She is 30NM from the coast (Crowley head) South of Brisbane.Only available tug is the WOONA ex Sydney.Contact person is Mehran Barooni - 0434216808 who is in contact with the HQ in Singapore to discuss options.Do you want us to involve Asia and let them talk with EMAS?[details of Lewek Kea]...[Annexure 1 to the Affidavit of Mr Timofei affirmed 25 August 2011]Dear John & Dear Keith,Regarding the LEWEK KEA, below an update after discussions with Mehran Barooni of EMAS.- AHTS LEWEK KEA towing offshore barge;- Lost 1 engine and is not making headway;- Positions: 95 NM NE of Newcastle in position 31 deg 42.6S - 153 deg 11 E;- They are assessing the market to have a tug on-standby near the LEWEK KEA on short notice this to intervene if required during the severe weather conditions she is experiencing right now;- Offered the WOONA ex Sydney departure tomorrow morning soonest;- During our telcon. it came forward that they require a tug which can be on-site during tonight, thus meaning that a tug from Newcastle would be the preference. They find a tug ex Sydney departure tomorrow morning to late for the bad weather the LEWEK KEA is experiencing;- Explained the situation and options from our side they would consider our option - however as last resort due to in there opinion long mob time & late departure;- Although I have clearly expressed our option to the owners and explained it in detail, if there are any options in due course please send me an email of give me a call so I can inform Mehran accordingly....[Annexure 2 to the Affidavit of Mr Timofei affirmed 25 August 2011]"
Mr Timofei's contemporaneous notes, Exhibit E, cover the period 3 December 2008 to 2 January 2010. The initial note of information passed on to Mr Timofei is that of Mr Mehran Barooni's mobile phone number, and a general outline of there being a "tug required", as well as the location and information about the Woona and the Wilga. He notes that Mr Chris Barnes told him about the "Lewek Kea" but there is no reference to the "Aussie 1".
What is apparent from looking at this page of Mr Timofei's book is that the vessel he was, correctly, told was in trouble because it had lost an engine was the Lewek Kea, and he was not aware of the existence of the Aussie 1, which was being towed by this boat. He was given Mr Barooni's mobile phone number. He then prepared his own electronic search for information as to who owned the Lewek Kea (see Exhibit OT 1) and the search, which is "cut and paste" to his email to Svitzer, is not a search of who owns the Aussie 1, but a search of who owns the Lewek Kea. His initial assumption of who Mr Barooni acts for is based on searching the Lewek Kea; what comes up from his search is that the Lewek Kea is owned by the ship manager, EMAS Offshore. His assumption that Mr Barooni is an employee of EMAS is based on this error.
While the problem for the plaintiff is that Mr Timofei has made an error about who he is dealing with, the problem is equally as serious for the defendant, because it is clear that such an error is unlikely to have been made if Mr Barooni told him, as he claimed in his evidence, that he represented TDJV. Shortly after this conversation, Mr Timofei sent an email including a copy to the email address he has been given, namely [email protected], the email address that Mr Timofei wrote down in his diary. He then received Mr Barooni's reply on Trident Australasia "footers". The subject matter continues to be "Lewek Kea" even after Mr Barooni clarifies, in emails in reply, with the Trident logo, what is required and by whom, but the identity of the defendant comes, according to Mr Timofei, from the name, address, telephone number, email, ABN and logo for Trident - the defendant, and from references to "Trident" during telephone conversations.
Mr Timofei's notes record all the necessary technical information about the Aussie 1, such as the latitude and longitude, information about each person he speaks to, including fellow employees at Svitzer, and mobile phone numbers for persons he is ringing such as Mr Barooni and also Mr Warren Mercer, the duty officer at Newcastle. Not only is there no reference to TDJV, but there is no reference to the Longtom project, Nexus Energy, Darwin Offshore, although these are names which Mr Barooni claims to have specifically told Mr Timofei. The same is the case with the emails sent at 8:35 and 10:54pm.
These emails are critical to an understanding of the parties' negotiations. This is because both Mr Barooni and Mr Timofei adopted the practice of recording in these emails the matters discussed after each conversation. Many of these emails start with words such as "regarding our telcon" and then restate the critical points. It is therefore necessary to consider each of these emails and the telephone conversations in detail as a result. These emails, which are attached to Mr Timofei's first affidavit, contain numerous typographical and grammatical errors, but in the interests of accuracy, they have been reproduced in their original form.
The subsequent telephone calls and emails
Mr Timofei refers in the email which is annexure 1 to Mr Barooni as having a mobile phone number but does not otherwise identify him by email. The first information that was obtained in relation to an email address is the email address set out at annexure 3 which was the email address "[email protected]". The text of that email was as follows:
"Dear Mr. Mehran Barooni,Regarding our telcon of this evening, we understand that the AHTS LEWEK KEA has experienced ME failure while heading to Singapore and is presently sailing with one engine while towing an offshore barge.The 2008 built AHTS LEWEK KEA is presently holding the barge however cannot make headway under the severe weather conditions she is experiencing. Her present positions is 96 NM NE of Newcastle in position 31 deg 42.6 S - 153 deg 11 E.As discussed your company is presently assessing the market to have a tug on-standby near the LEWEK KEA on short notice this to intervene if required during the severe weather conditions she is experiencing right now.We have discussed this matter initially with SVITZER, and are able to offer a tug WOONA (see attached specs) ex Sydney with her soonest departure tomorrow morning (23/05) around 10:00 hrs LT (subject earlier commitments). The point is that due to the combination of the severe weather - flooding the East coast is experiencing and the docking of certain tugs, SVITZER unfortunately does not have the flexibility as in normal practice to gear up a tug either from Newcastle or on an earlier timing. For the availability of the WOONA we have to shift other tugs around from Newcastle to Sydney to have her available.During our telcon. it came forward that you require a tug which can be on-site during tonight, thus meaning that a tug from Newcastle would be the preference. A tug ex Sydney departure tomorrow morning you find to late for the bad weather the LEWEK KEA is experiencing as we speak.We fully understand the position you are in and we will consequently re-check the planning's of the SVITZER tugs in NSW this to see if there are any other options available. If you have any further news in due course available please give either the undersigned a call or drop an email on [email protected] counts if in the case the WOONA would be a suitable option this so that I can provide you an offer." (Annexure 3 to the affidavit of Mr Timofei affirmed 25 August 2011)
A further email was sent to the same email address on Friday 22 May at 9:23pm confirming that the tug could depart at 10:00am the next day. At 10:06pm came a reply from Mr Barooni sent on his Blackberry, with a copy to his account at [email protected]. Importantly, the "footer" to this Blackberry email was as follows:
"Mehran Barooni | Procurement, Subcontracts and Logistics Manager | Trident Australasia125A Royal Street, East Perth, WA 6004 | Ph: +61 8 9225 2138 | Fax: +61 8 9225 2120 | Mob: +61 434 216 808"
An email of 22 May 2009 at 10:54pm from Mr Timofei was sent not only to Mr Barooni's email address at [email protected], but also to his Blackberry [email protected], and was also copied to Drew Shannon of Svitzer, Mehran Barooni, "Peter Cox" and "Eilert Halvorsen". Mr Halvorsen and Mr Cox are directors of Trident Australasia Pty Ltd (Annexure 8 to the affidavit of Mr Timofei affirmed 25 August 2011).
The email of Friday 22 May to Mr Barooni contained a salvage offer as follows:
"Dear Mehran,Regarding our telcon of this evening, we understand that the AHTS LEWEK KEA has experienced ME failure while heading to Singapore and is presently sailing with one engine while towing an offshore barge.The 2008 built AHTS LEWEK KEA is presently holding the barge however cannot make headway under the severe weather conditions she is experiencing. Her present positions is approximately 160 NM from Sydney.As discussed your company is presently assessing the market to have a tug on-standby near the LEWEK KEA this to intervene if required during the severe weather conditions she is experiencing right now.Offer SVITZER Salvage Australasia:Vessels: WOONA - 47 Ton BP (see attached specs);Period of hire: Minimal 1 day firm;Daily hire: USD 60.000,- per calendar day Excluding fuel & lubes;Delivery: Sydney;Redelivery: Sydney;Excluded: All port-, pilotage-, agency-, local taxes/dues-, etc. costs for tug;Contract: Bimco Towhire Agreement - suitably amended;Payment terms: To be mutually agreed upon;Subject to: Availability/earlier commitment of tug.Commencement: please be informed that after receiving confirmation for departure we will arrange matters with respect to crew, fuel and suitable towage gear. Due to the fact that this is not a normal port towage, additional SVITZER crew is required which will then be being sourced by our NSW office. If we receive the confirmation on short notice, we may predict to have the tug ready for departure around 10:00 hrs LT (23/05), however this depends on time of confirmation from your goodselves;Condition: a no claim for salvage clause will be incorporated in the tow-hire contact, based on the condition as reported by your goodselves earlier today. In the event that the condition of the vessel has changed drastically such as but not limited too grounding. The salvors have the right to re-negotiate terms;Work role: The above offer is for standby services and/or towage only of the barge by the WOONA if required to the nearest port." (Annexure 9 to the affidavit of Mr Timofei affirmed 25 August 2011)
The answer to this came at 11:34pm on 22 May 2009 as follows:
"From: Mehran Barooni [[email protected]]Sent: Friday, 22 May 2009 11:34 PMTo: Oliver TimofeiSubject: RE: LEWEK KEA/Offer SVITZER Salvage/CD-i/OTOliverIs it possible to talk?Regards;Mehran Barooni | Procurement, Subcontracts and Logistics Manager | Trident Australasia125A Royal Street, East Perth, WA 6004 Australia | Ph: +61 8 9225 2120 | Mob: +61 434 216 [email protected] | logo of Trident then appears.]" (Annexure 10 to the affidavit of Mr Timofei affirmed 25 August 2011)
On 23 May 2009 at 6:24am, Mr Barooni sent the following email:
"OliverReference to our phone conversation. I confirm the charter of MV Woona ex Sydney day rate 60,000 AU minimum one day based on Bimco tow hire with no claim for salvage clause. The charter hire is payable from the time of sailing from Sydney until return of the tug back to Sydney.The intention is to use the tug to assist in holding the barge APC Aussie 1 position/connect the tow wire to the barge or to tug Lewek Kea if needed.Regards;Mehran Barooni | Procurement, Subcontracts and Logistics Manager | Trident Australasia125A Royal Street, East Perth, WA 6004 Australia | Ph: +61 8 9225 2138 | Fax: +61 8 9225 2120 | Mob: +61 434 216 [email protected] | logo of Trident appears.]" (Annexure 11 to the affidavit of Mr Timofei affirmed 25 August 2011)
Mr Timofei answered this email three minutes later as follows:
"From: Oliver TimofeiSent: Saturday, 23 May 2009 6:27 AMTo: [email protected]; [email protected]: Drew Shannon; Commercial, SVITZER Salvage B.V.; Operational Office SVITZER Salvage; Mehran Barooni; Peter Cox; Eilert HalvorsenSubject: RE: LEWEK KEA/Offer SVITZER Salvage/CD-i/OTImportance: HighDear Mehran,Referring to your call at 06:00 hrs LT (23/05), we understand that the towage connection broke between the LEWEK KEA and that off-shore barge, we further understand that the emergency tow is being re-connected as we speak.Based on the above you confirm to have SVITZER Salvage mobilise the tug WOONA ex. Sydney under the below terms. I have in turn called Sydney Port to arrange matters accordingly.I will keep you updated of our ETD in due course.Can you keep me updated on the latest position of the LEWEK KEA and the barge?Trust to have informed you as required."(Annexure 12 to the affidavit of Mr Timofei affirmed 25 August 2011)
At 6:38am Mr Timofei sent a further email noting he has received "your confirmation in good order" and noting the tug WOONA's daily rate was $60,000 US per calendar day excluding fuel and lubes "as stated in below email".
Following the telephone conversation, Mr Timofei sent the following email to Mr Barooni:
"From: Oliver TimofeiSent: Saturday, 23 May 2009 8:10 AMTo: Mehran Barooni; [email protected]; mehranCc: Drew Shannon; Commercial, SVITZER Salvage B.V.; Operational Office SVITZER Salvage; Peter Cox; Eilert HalvorsenSubject: RE: LEWEK KEA/Offer SVITZER Salvage/CD-i/OTAttachments: WICKHAM Class.pdfDear Mehran,
Following our telcon. please be informed that we have been able to re-arrange matters in such a way that the tug WOONA ex Sydney will be replaced by tug WICKHAM ex Newcastle - see attached specs.Arrangements are being made at present to have the tug departing Newcastle at approximately. 11:00 hrs LT (23/05), if all goes well.We understand that the barge APC Aussie 1 loaded with 200 tonnes FO is a unmanned barge for which please confirm. In order to make a connection by the tug WICKHAM to the barge if needed, we would propose the following to be met by the crew onboard the LEWEK KEA:Set crew onboard the APC Aussie barge, and retrieve the towing bridle on which prepare the towing connection and be on-standby until the tug WICKHAM arrives.Again any further information as to the present condition of the barge and the LEWEK KEA, her latest position etc etc is of great interest.Looking forward to your reply." (Annexure 14 to the affidavit of Mr Timofei affirmed 25 August 2011)
By 9:01am the emergency rescue was in process and Mr Timofei sent the following email:
"From: Oliver TimofeiSent: Saturday, 23 May 2009 9:01 AMTo: Mehran Barooni; [email protected]; mehranCc: Drew Shannon; Commercial, SVITZER Salvage B.V.; Operational Office SVITZER Salvage; Peter Cox; Eilert HalvorsenSubject: RE: LEWEK KEA/Offer SVITZER Salvage/CD-i/OTDear Mehran,Following our telcon. I understand that the LEWEK KEA is fully functional 100%, further understand that you require SVITZER to arrange salvors to board the APC Aussie barge by helicopter to re-arrange the towing wire and this having the LEWEK KEA to re-connect to the barge.We have in turn been in contact with AMSA [Australian Maritime Safety Authority] about this matter, and we understand that the emergency tow-line is not accessible; due to the structure of the barge no option to set crew onboard and that there is no direct access to the towing bridle.From your reports I understand that a direct connection is accessible on the PS of the barge and by passing on the soft line, to keep matters clear to everyone we appreciate a detailed reply on this matter.We further understand that the barge is she drifts under the present course will go aground at midnight tonight.We are going through the motions right now as to what we can arrange on short notice, will comeback asap." (Annexure 15 to the affidavit of Mr Timofei affirmed 25 August 2011)
At 9:10am, Mr Barooni replied as follows:
"From: [email protected]: Saturday, 23 May 2009 9:10 AMTo: Oliver TimofeiSubject: Re: LEWEK KEA/Offer SVITZER Salvage/CD-i/OTOliver Emergency tow line is attached to the side of the barge. We need 2 men onboard to just pass the soft rope connected at the end of wire from the port side of the barge to the tugAMSA will organize the heloRegardsMehran Barooni | Procurement, Subcontracts and Logistics Manager | Trident Australasia125A Royal Street, East Perth, WA 6004 | Ph: +61 8 9225 2138 | Fax: +61 8 9225 2120 | Mob: +61 434 216 808" (Annexure 16 to the affidavit of Mr Timofei affirmed 25 August 2011)
There is no logo at the bottom of this email, presumably because it is sent by Mr Barooni's Blackberry.
At 9:40am Mr Timofei sent the following email:
"From: Oliver TimofeiSent: Saturday, 23 May 2009 9:40 AMTo: Mehran Barooni; [email protected]; mehranCc: Drew Shannon; Commercial, SVITZER Salvage B.V.; Operational Office SVITZER Salvage; Peter Cox; Eilert HalvorsenSubject: RE: LEWEK KEA/Offer SVITZER Salvage/CD-i/OTImportance: HighDear Mehran,Following your request we have gone through the motions internally and the following can be concluded:- Barge APC Aussie 1 is adrift and heading to the coast line - expected time of grounding is 19:00 hrs LT (23/04);- ATHS LEWEK KEA reported 100% operational;- Towing connection & emergency tow Barge APC Aussie 1 fouled;- Due to structure of barge it is not possible to set crew onboard.It is of great importance that a salvage team is set onboard to arrange matters for safe connection of barge to a tug well before threat of grounding. Tug WICKHAM is being prepared for departure to assist when and if necessary.Based on the above the following matters are set in motion and available:- Tug WICKHAM being prepared for departure latest ETD 11:00 hrs LT (23/04);- 3 men salvage team ex Sydney available including first aid salvage gear;- Westpac helicopter available ex Newcastle to bring the salvage team to the site.It is essential that no time will be lost, the weather and time window is crucial this to have all matters arranged well before the risk of ground of the APC Aussie 1 barge. Based on the present condition and the drastically transformation of the present situation and looking at the matters that are already set in motion. SVITZER Salvage Australasia offers her services under the following terms: LOF 2000 SCOPIC incorporated.By doing so a swift response can be made and thus having the knowledge and responsibility by the party involved who conduct operations on a daily basis. We thus look forward to your confirmation on the above. It must be noted that under the LOF 2000 salvage contract the terms agreed this morning of the commercial contract will be incorporated.That being said, we would appreciate to have direct contact between our Salvage Master and the Captain/Tow-master of the LEWEK KEA this to discuss operation matters (for example is there power available o/b the barge/is there access to the winch etc etc), can you please provide us his contact details?" (Annexure 17 to the affidavit of Mr Timofei affirmed 25 August 2011)
At 10:11am Mr Barooni sent a sketch of the emergency tow wire as requested. The email address is signed:
"RegardsMehran BarooniTrident Australasia Pty Ltd" (Annexure 18 to the affidavit of Mr Timofei affirmed 25 August 2011)
However, the "footer" does not appear. The email address at the top, as can be seen from this email, is [email protected].
Mr Timofei replied at 10:41am confirming receipt of the drawing and noting that the salvage team was mobilising (Annexure 19 to the affidavit of Mr Timofei affirmed 25 August 2011).
At 11:02am Mr Chris Borek, the Purchasing Officer of Trident, sent an email to Mr Timofei with copies to Mr Barooni and Mr Doyle. The full text of this email is as follows:
"From: Chris Borek [[email protected]]Sent: Saturday, 23 May 2009 11:02 AMTo: Oliver Timofei Cc: Mehran Barooni; Peter DoyleSubject: RE: LEWEK KEA/Offer SVITZER Salvage/CD-i/OTAttachments: 100_8421.JPGImportance: HighGreetings OliverEnclosed picture of Aussie 1 barge. Please take note of emergency tow wire suspended off portside of barge.Please pass this onto your salvage team for review.I will send you more detailed photos shortly.RegardsChris BorekPurchasing Officer[Trident's logo appears]125A Royal Street, East Perth, WA 6004T 08 9225 2116 / +65 6773 1656 F 08 9225 2120 / +65 6773 6173 M 0433 210 122 / +65 9864 [email protected] (Annexure 21 to the affidavit of Mr Timofei affirmed 25 August 2011)
He sent another photograph at 11:06am, with the same address details at the top and bottom (Annexure 22 to the affidavit of Mr Timofei affirmed 25 August 2011).
At 11:11am, Peter Doyle at Trident Australasia sent Mr Timofei some documents. The full email showing all of the addresses as follows:
"From: Peter Doyle [[email protected]]Sent: Saturday, 23 May 2009 11:11 AMTo: Oliver TimofeiCc: Mehran Barooni; Chris Borek; [email protected]" (Annexure 23 to the affidavit of Mr Timofei affirmed 25 August 2011)
This was in turn sending on material from a Mr Hamid Pezhhan, namely a barge tank plan. Mr Pezhhan is described in this email as the Engineer Director of Trident Australasia as follows:
"From: Hamid PezhhanSent: Saturday, 23 May 2009 8:59 AMTo: Peter Cox; Hamid Pezhhan Optus; Mehran Barooni; Eilert HalvorsenCc: Karen Clark; Peter DoyleSubject: RE: Barge Tank PlanHi PeterThis information also might be useful.RgsHamidHamid Pezhhan | Engineer Director | Trident Australasia125A Royal Street, East Perth, WA 6004 | Ph: +61 8 9225 2115 | Fax: +61 8 9225 2120 | Mob: +61 422 629 [email protected] | (Annexure 23 to the affidavit of Mr Timofei affirmed 25 August 2011)
There are other emails from Mr Pezhhan to Mr Doyle attached to this email. Not one of these refers to the joint venture or to TDJV. All have Trident Australasia addresses on them.
A further photograph was sent at 11:15am by Mr Barooni to Mr Timofei. A bundle of photographs sent by Chris Borek of Trident Australasia to Mr Timofei appears at annexure 25 and 26 to the affidavit of Mr Timofei affirmed 25 August 2011.
Mr Timofei sent an update to Mr Barooni at 12:51pm that day. The urgency of the situation is made very clear:
"Dear Mehran,Following your recent email of which contents are noted, we in turn thank you for the provision of the photo's and drawings which are of great assistance for the salvage team.Again we want to re-iterate the present status:- The barge drifting towards the coast and latest ETA coastal area is 17:00 hrs LT;- While co-operating with AMSA and Westpac we have been able to arrange a sooner boarding by the 3 men salvage team on board the helicopter in Glosford;- The WICKHAM departed Newcastle at 12:15 hrs LT;- Additional salvors and salvage equipment have been set on-standby if in need.As indicated earlier please let me re-iterate our concerns:It is essential that no time will be lost this to safeguard the condition the APC Aussie 1 barge, the weather and time window is crucial (nearly 4 hours from now). As you understand we have been taking our best endeavours to keep matters moving from all sides. These measures are taken under the salvors obligation by conducting there best endeavours and avoid the great risk of grounding of the APC Aussie 1 barge.These endeavours by the salvors have been taken without the confirmation on the contractual terms laid down by SVITZER Salvage, we again would appreciate a prompt reply confirming the terms SVITZER Salvage have set out, this again to safeguard the operation.That being said we understand that the towing connection can be made easily by means of the plans you have laid down earlier on today, although we are of the opinion that the work role has changed drastically since last night - at that time it was standby services and if required holding services by the tug WICKHAM only at present we are setting a salvage team on board, hiring a helicopter and trying to avoid the ground of APC Aussie 1 barge.All in all we in addition to the terms set out for the tug WICKHAM which have been confirmed by your goodselves this morning, offer for the additional services of the salvage team to board the APC Aussie 1 barge and to reconnect the tug LEWEK KEA to the barge only:- Daily hire for the Salvage Master, Salvage Officer and Salvage Engineer: 50,000.00 USD per calendar day;- OOP's made at costs by the salvors such as but not limited too boarding and lodging, car and helicopter hire + 15% handling fee;- These services will be conducted under the responsibility of the tow-master onboard the LEWEK KEA;- If for whatever reason the connection cannot be made, the salvor has the right to re-negotiate terms.Trust to have informed you as required." (Annexure 27 to the affidavit of Mr Timofei affirmed 25 August 2011)
The reply to the 12:51pm email came at 1:17pm and is as follows:
"OliverAs discussed over the phone we accept the cost of Svitzer on three men professional salvage team, Westpac helicopter hire, tug Wickham hire and other travel and incidental lodging, boarding etc costs devised in below email.Due to current assessment and the nature of your assistance and allocation of your resources and the time they will arrive in the barge area, our tow tug master will be in charge of salvaging the barge APC Aussie 1 (by way of connecting emergency tow wire and pulling her out of danger) unless the situation change drastically.Regards,Mehran BarooniTrident Australasia Pty Ltd" (Annexure 28 to the affidavit of Mr Timofei affirmed 25 August 2011)
Further emails were sent by Mr Barooni at 1:46pm and 1:51pm, to which Mr Timofei replied at 3:01pm advising the Wickham was approximately 75 miles away and would arrive at about 8:00pm.
What happened when the rescue of the vessel occurred is described by Mr Timofei in his email of 6:19pm:
"Dear Mehran,Please be informed of the following:At around 15:00 hrs LT the salvage team boarded the APC AUSSIE 1 by helicopter, the team exists out of the Salvage Master, Salvage Office and a Salvage Technician of SVITZER Salvage Australasia.After arrival onboard contact was sought with the tug master of the LEWEK KEA, and the condition of the emergency tow rig was assessed.At 1710 hrs LT the emergency tow wire was passed and consequently connected to the main towing wire, at that present point the LEWEK KEA and APC AUSSIE 1 was less then 10 miles off shore.It came forward during connecting up that the main towing wire of the LEWEK KEA is severely defected. The tow wire is extremely short and the salvage team is therefore very concerned about her holding condition during the night and the overall condition of the towing wire onboard the LEWEK KEA. As to the spare towing wire onboard the LEWEK KEA it is in turn not certain if this one in working order earlier.The plan at present is as follows: due to the time and the fall of darkness the plan is to keep the towing connection as is until the tug WICKHAM arrives on-site (ETA approximately 2100 hrs LT). On earliest convenience the WICKHAM will takeover the tow from the LEWEK KEA.Our advise would be to two the APC AUSSIE 1 to the nearest capable port which in this case would be the port of Newcastle, there the tow can be re-arranged and depart to Singapore. We look forward to receive a confirmation from your goodselves on this matter asap.Trust to have informed you as required." (Annexure 32 to the affidavit of Mr Timofei affirmed 25 August 2011)
Copies of this email was sent to Mr Cox and Mr Halvorsen of Trident.
Mr Barooni replied at 9:28pm as follows:
"From: Mehran Barooni [[email protected]] Sent: Saturday, 23 May 2009 9:28 PMTo: Oliver TimofeiCc: Drew Shannon; Commercial, SVITZER Salvage B.V.; Operational Office SVITZER Salvage; Peter Cox; Eilert Halvorsen; Tony RossSubject: RE: LEWEK KEA/Report 20:00 hrs LT/CD-r/OTOliverYour plan of action to pass on the tow to Wickham and Wickham tow the barge APC Aussie 1 to Newcastle is accepted.Before passing the tow to Wickham on first light tomorrow morning, we would like Wickham to connect and run a chaser on the now-parted tow wire still connected to main bridle of the barge and drag it on along the wire and where possible, lift the tow wire to the deck and cut the wire to shorten the length of wire being dragged by the barge.I am still awaiting to have contact detail of Wickham to talk to tug master directly and brief him.Regards;Mehran Barooni | Procurement, Subcontracts and Logistics Manager | Trident Australasia125A Royal Street, East Perth, WA 6004 Australia | Ph: +61 8 9225 2138 | Fax: +61 8 9225 2120 | Mob: +61 434 216 [email protected] | logo appears]" (Annexure 33 to the affidavit of Mr Timofei affirmed 25 August 2011)
A further email at 10:02pm was sent which reads as follows:
"From: Mehran Barooni [[email protected]] Sent: Saturday, 23 May 2009 10:02 PMTo: Oliver TimofeiCc: Peter Cox; Drew Shannon; Operational Office SVITZER Salvage; Commercial, SVITZER Salvage B.V.; Eilert Halvorsen Subject: Main Towing BridleOliverWe object cutting the barge APC Aussie 1 main tow bridle (to get rid of now parted Lewek Kea tow wire) without our consultation and without exhausting other possible options. Please call me to discuss.We need to talk to your person on the ground. We also need to be able to instruct directly master of Wickham.Regards;Mehran Barooni | Procurement, Subcontracts and Logistics Manager | Trident Australasia125A Royal Street, East Perth, WA 6004 Australia | Ph: +61 8 9225 2138 | Fax: +61 8 9225 2120 | Mob: +61 434 216 [email protected] | logo appears]" (Annexure 34 to the affidavit of Mr Timofei affirmed 25 August 2011)
The reference to "we" is not found in the other emails. A further email sent at 10:05pm dealt with problems with the main tow bridle. Further emails are sent to both parties by Drew Shannon and the email of 23 May 2009 reads as follows:
"From: Drew Shannon <[email protected]>Sent: Saturday, 23 May 2009 10:12 PMTo: Mehran Barooni; Oliver Timofei Cc: Peter Cox; Operational Office SVITZER Salvage Subject: RE: Main Towing BridleMehranBefore you go making orders, pplease [sic] read my last email. The recovery wire is parted. We will reassess in the morning.If you have questions, please refer them to me as I do not want the tugmaster distracted from his task.Best regardsDrew Shannon" (Annexure 38 to the affidavit of Mr Timofei affirmed 25 August 2011); Commercial, SVITZER Salvage B.V. ; Eilert Halvorsen
On 24 May 2009 at 2:50pm Mr Timofei emailed Mr Barooni information about the estimated arrival time of the Aussie 1 in Newcastle asking "can you also provide us the contact details of your agent in Newcastle?" (Annexure 39 to the affidavit of Mr Timofei affirmed 25 August 2011). The question does not appear to have been answered. The email of Sunday 24 May at 3:38pm is as follows:
"OliverAs discussedPlease send daily report of the tug from the moment it departed from Newcastle. The DPR required as a minimum would normally contains position, course speed date and time and fuel and lub and water inventory and activities of last 24 hours.
Regards;Mehran Barooni | Procurement, Subcontracts and Logistics Manager | Trident Australasia125A Royal Street, East Perth, WA 6004 Australia | Ph: +61 8 9225 2138 | Fax: +61 8 9225 2120 | Mob: +61 434 216 [email protected] | logo appears]" (Annexure 40 to the affidavit of Mr Timofei affirmed 25 August 2011)
The email referring to a "JV"
On Monday 25 May 2009, Mr Timofei sent an email the contents of which is relied upon heavily by the defendant:
"From: Oliver TimofeiSent: Monday, 25 May 2009 9:15 PMTo: Bas Wiebe; Drew ShannonCc: Commercial, SVITZER Salvage B.V.Subject: FW: LEWEK KEA/Update 08:00 hrs LT/CD-r/OT [SEC=UNCLASSIFIED]Attachments: amsa.jpg; image001.gif; image001.gifBas,Regarding the APC AUSSIE 1 barge salvage operation, for your information the APC AUSSIE 1 barge is made by Kim Heng Marine and is also part of the JV where amongst other vessel are situated in." (Annexure 44 to the affidavit of Mr Timofei affirmed 25 August 2011)
Mr Timofei was cross-examined about this as follows:
"Q. You make no mention in either of those affidavits in relation to the APC Aussie 1 barge being made by Kim Heng Marine, being part of the JV, where amongst other vessels are situated in?
A. Correct.
Q. I take it though from your email dated 25 May, that at least at 25 May you were aware of a JV which contained vessels including the Aussie 1?
A. Correct.
Q. That the Aussie 1 which was one of those vessels within the JV was constructed by Kim Heng Marine, correct?
A. Correct.
Q. I suggest to you that you were aware of that information prior to 23 May?
A. No, I was not.
Q. What I suggest to you is that you were aware of that information prior to the Wickham being sent out and prior to the salvage team leaving Newcastle by helicopter?
A. That's incorrect.
Q. The JV you are referring to is TDJV?
A. No, it was not. I was referring to a JV.
HER HONOUR
Q. I was referring to?
A. A JV, a joint venture. What it was called.
Q. Part of a JV. So JV stands for joint venture. So that was an abbreviation by you for joint venture?
A. Yes, it was, your Honour.
Q. It's not a reference to a company with the name JV in it?
A. No, your Honour.
HER HONOUR: Thank you.
WOODS
Q. I suggest you are referring to the JV, correct?
A. Yeah, it says that it's a JV.
Q. I suggest you're referring to the Trident Darwin Offshore JV, shortened to be TDJV?
A. That's incorrect.
Q. That is the Trident Darwin Offshore Venture?
A. That's incorrect.
Q. I suggest you were aware of that because Mr Barooni had informed you that before any services had been undertaken by Svitzer Salvage?
A. That's incorrect.
Q. You refer now to that document in your affidavit of 26 February?
A. That's correct.
Q. I take it that somebody has brought document 44 to your attention?
A. Yes, that's correct.
Q. You have prepared your affidavit of 26 February 2012?
A. Correct.
Q. Somebody has brought to your attention this document 44, correct?
A. That's correct.
Q. You are seeking to explain in your affidavit of 26 February what you meant by part of the JV?
A. That's correct.
Q. So what is the JV that you say you are referring to?
A. It was the discussion I had with Merryn on Monday.
Q. Mr Timofei, are you reading your affidavit at the moment?
A. No, I'm not. On Monday, 26 May, on arrival in Newcastle, had a meeting with Mr Barooni and also with the salvage master in attendance. Doing we went through the operation together with Mr Barooni on board, also to see where the faults were, where things went wrong and where the salvage team had conducted, so that we were aware of all the items, all the things that happened. During that discussion the term Kim Heng was raised, due to the crane on board. Myself, I have been working with Kim Heng or exposed to Kim Heng a few years before. Therefore the discussion was actually going through that direction and doing part I can't recall is that a JV was in place, where Kim Heng had an involvement.
Q. You simply say the barge was constructed by Kim Heng and along with some other vessels I withdraw that. You say that Mr Barooni said the barge was constructed by Kim Heng and along with some other vessels is part of JV in which Kim Heng are involved?
A. Yes.
Q. What is the JV that you are referring to?
A. That's a phrase that was made by Mr Barooni at the time.
Q. You didn't refer to this conversation in either of you earlier affidavits, correct?
A. That's correct.
Q. I take it that you didn't recall those conversations at the time or you didn't recall that conversation at the time you prepared your affidavit in August or November of 2011?
A. That's correct.
Q. There's nothing in your notebook referring to that conversation, is there?
A. That's correct.
Q. What I suggest to you is that your reference to that conversation is an attempt to deal with your reference to the JV, that is recently in document 44, it's only recently been brought to your attention?
A. That's incorrect.
Q. Who was it that contacted you and brought that email to your attention?
A. That was from my solicitor, our solicitor.
Q. When you say the JV you don't know what JV is being referred to?
A. No." (T 90-92)
Mr Timofei did not refer to this document in his original affidavit, hence the cross-examination about the circumstances in which it had not been included earlier. It was put to Mr Timofei the reference to "the JV" was a reference to "TDJV".
Mr Timofei's evidence is that this information arose from a conversation he had with Mr Barooni after the Aussie 1 had been docked at Newcastle. He said that Drew Shannon was also present during this conversation.
I do not accept his isolated reference to "the JV" shows that Mr Timofei was aware of the entity TDJV, or that he knew that this entity was in fact the entity represented by Mr Barooni.
This email records information that Mr Timofei has received after the events in question. It indicates he is aware of a joint venture project, but not that he has any information about TDJV, Longtom, Nexus Energy or Darwin Offshore. Mr Timofei's explanation is that JV just means "joint venture", not the name of a company. Mr Barooni was unable to give a contrary version of the conversation because he has no recollection of the conversation at Newcastle:
"Q. Do you remember who else you met that day from Svitzer Salvage?
A. Apart from Mr Drew Shannon, I can't remember the name of the other person and Drew Shannon I remember because I had the some communication with him while he was on the barge.
Q. You had some discussions on the day the Aussie 1 arrives with people from Svitzer Salvage. Correct? You spoke to them when the barge got in?
A. When the barge came into the port? Yeah, and those three persons, yes.
Q. You had bit of a general chat with them?
A. Yeah, yeah, yeah. I thanked them for their work and they shown me some specific location of the barge.
Q. I would suggest to you that one of the things that one of them said to you is that they used to work at Kim Heng in Singapore, do you remember that?
A. Kim Heng?
Q. Someone from Svitzer said to you I used to work for Kim Heng in Singapore? Sorry, I'll put that again. One of them said, "I used to work in the same office as Kim Heng in Singapore when I was working for Svitzer Salvage Asia", do you remember someone saying that?
A. I'm not sure.
Q. It might have been said, you now can't remember?
A. I'm not sure, yeah.
Q. I'm not suggesting you should remember but I'm just suggesting that this was something someone said to you when the tug brought in the Aussie 1 on 25 May?
A. I saw it an affidavit but I'm not sure, yeah.
Q. The position is you don't remember whether this conversation happened or not. Is that correct? Did you just nod in answer to that question or did you actually say yes, that's correct, you don't remember?
A. The last question?
Q. Yes, the last question. Mr Woods and I have a different recollection of whether you answered or not. We're just trying to clear that up. I will ask it again so it's clear. I just want to clarify so that the record of transcript is clear. Is it your position that the conversations that you had with people on the Aussie 1 from Svitzer Salvage on the 25th you now don't remember what was said as a general proposition?
A. That is correct." (T 183-184)
This is the first reference to any JV by any one, including Mr Barooni, in the contemporaneous documentation.
After the Aussie 1 was safely berthed in Newcastle Harbour, Mr Timofei set about collecting all of the invoices so that he could send his bill. The address to which he sent his bill was not the address of the defendant, but the address for the joint venture. The circumstances in which they come about require a careful examination of all of the documentation following the safe berthing of the ship.
Events after the rescue of the Aussie 1
On Tuesday 26 May 2009, Mr Timofei sent the following email:
"From: Oliver TimofeiSent: Tuesday, 26 May 2009 11:22 AMTo: Mehran BarooniCc: Commercial, SVITZER Salvage B.V.; Operational Office SVITZER SalvageSubject: LEWEK KEA - APC AUSSIE 1/Costs & timings/CD-i/OTAttachments: Wickham Report 260509.pdf; img-526053234.pdfImportance: HighDear Mehran,Following the APC AUSSIE 1 salvage assistance, it was good to have a brief meeting yesterday evening on which the salvage team with you went through the motions onboard the barge, to stress what the damages are onboard due to the severe weather conditions she experienced over time. Trust this was of assistance.As I informed you yesterday, I do not have all costs in yet this will take some time, however I hereby provide you some initial data which will be finalized in due course when all information is retrieved from the several parties.We will in due course provide you a total cost figure existing out of the following components:- Tug charter of the WICKHAM;- Consumables such as bunkers & lubes;- Daily hire for the salvage team;- Consumables related to the operation which are amongst others the car and helicopter costs;- Tug charter for the additional tugs required to navigate the entrance and positioning her safely alongside;
* Tug MAYFIELD later on replaced by tug WATO due to broken tow wire;* Tug BARRANAGA;* Tug HAMILTON.
- Consumables such as the broken main tow wire for the tug MAYFIELD;- Lines man;- Other miscellaneous costs.
Regarding the operation attached you may find the report from the tug WICKHAM made by the Captain onboard with the desired timings. You may further find attached the fuel reports from the Chief Engineer, the tug WICKHAM consumed 14482 Litres in total during the operation. The Newcastle tug base is presently bunkering the WICKHAM so they will have the today's fuel price available in due course.It must further be noticed that whilst assisting the barge Aussie 1 enter Newcastle Harbour 13:15 25/05/09 the harbour tug MAYFIELD had its main tow line cut by a sheave used for the barge anchors. This sheave protrudes outside the line of the barges hull. The tow line was for all intensive purposes new having only completed approximately 200 jobs. This line has a normal service life of 3000 jobs.The services of the MAYFIELD were provided under our Sundry Services provision in accordance with the United Kingdom Conditions for Towage and Other Services (Revised 1974) as amended by Svitzer 2008. The costs for replacement will be approximately $10,800 AUD. The supporting vouchers will follow together with the final OOP overview." (Annexure 45 to the affidavit of Mr Timofei affirmed 25 August 2011)
Attached was an initial costs sheet addressed only to "Case no.: 90263, Operation: APC AUSSIE 1". The sole costs are for the hire of the Wickham and the salvage team; other items have not been added.
Mr Timofei then set about obtaining copies of the relevant invoices, including the cost of the harbour tug Mayfield having its main tow line cut by a sheave used for the barge anchors.
The bills in question were all sent to Mr Timofei and contained no information as to the identity of the owner of the Aussie 1. They refer only to the Svitzer Salvage job for the salvage of Aussie 1. However, it is worth noting that the invoice from the Maritime Casualty / Emergency Towage, Maritime Operations Division of the Australian Maritime Safety Authority ("AMSA") does say:
"Oliver,Attached is an invoice for you to reimburse AMSA for the Helicopter after you retrieve funds from Trident.Also, would you be able to forward me the details of who you are dealing with at Trident - I want to send them the bill for the Dornier aircraft - this one might be messy so I will save you the trauma." (Annexure 55 to the affidavit of Mr Timofei affirmed 25 August 2011)
On Friday 5 June 2009, Mr Timofei sent an email to Mr Barooni as follows:
"Dear Mehran,Regarding the APL AUSSIE 1 salvage assistance, we are presently going through the motions this to retrieve all the costings as we speak. When all is ready we will forward this over to you in due course.On a other matter, I understand that Trident Australia is in contact with Dockwise to see if they can load & transport the APL AUSSIE 1 barge on one of there semi submersibles (which is in Melbourne presently) and then transport the barge to her original destination. We further understand that the loading if all matters go ahead with Dockwise will be done in Sydney - Watsons bay due to the desired water depths.We know Dockwise very well and have worked together on several occasions; I can even inform you that a component of Dockwise originates from SVITZER years back. Quite a few operations have been conducted between SVITZER and Dockwise specifically in Australia, on which SVITZER has assisted Dockwise with either the load or discharge of a floating object on various cases.One of them was quite recently in Sydney with the discharge of a dredger. That being said, we understand that the arrangements as such would need to be arranged by the charterer which then would be Trident I assume, I am therefore contacting you to see if SVITZER can be of assistance on the following matters:1. Towage of the APL AUSSIE 1 from Newcastle to Sydney by SVITZER tugs ex Newcastle;2. Assistance by SVITZER tugs of the APL AUSSIE with the loading/positioning onboard the Dockwise vessel in Sydney;3. Assistance by SVITZER tugs of the APL AUSSIE with the discharge/re-positioning from the Dockwise vessel at her destination.As to the last component I am not certain where the APL AUSSIE 1 is heading too, however SVITZER operates 185 tugs in 21 ports around Australia and the Pacific. We further operate tugs in port located in the Far-East such as Singapore/Indonesia/China/Vietnam.We look forward to your comments on the above to see if SVITZER can be of assistance." (Annexure 58 to the affidavit of Mr Timofei affirmed 25 August 2011)
On Thursday 18 June 2009, Mr Timofei sent an email following a telephone conversation earlier on that day saying:
"Dear Mehran,Regarding our telcon. of today, I understand that for insurance matters you request a breakdown of the costings made for the APC AUSSIE 1 salvage operation.Although I am awaiting some final invoices, below you may find a intermediate break-down as to how we stand." (Annexure 59 to the affidavit of Mr Timofei affirmed 25 August 2011)
Attached to this email was a draft bill. A further revised bill was sent on Saturday 20 June 2009 at 12:03am.
On Monday 22 June 2009 Mr Timofei sent an email to Mr Barooni as follows:
"Dear Mehran,Regarding my email of last Friday interested to learn if you had the time to go through the contents, of course understand it is on quite short notice.That being said, as requested, attached you may find a few photo's made during the salvage case which can hopefully be of assistance.Looking forward to your prompt reply to settle this matter as soon as possible." (Annexure 61 to the affidavit of Mr Timofei affirmed 25 August 2011)
This was followed up on Monday 29 June 2009 with an email as follows:
"Dear Mehran,As our telcon refers of last Friday, interested to receive the full-style from your goodselves so that the final invoice can be made and sent asap.We further understand that the APC ASSIE 1 is still in Newcastle, although we understand that there are discussions going on between owners of the barge and operators to end the contract as is on which the responsibility of the barge will be transferred from Trident to APC, we would like to stress that we have ocean going tugs available ex Singapore and/or other options in the Australasia if required." (Annexure 63 to the affidavit of Mr Timofei affirmed 25 August 2011)
The reply to this, which was sent about two hours later, was as follows:
"From: Mehran Barooni [[email protected]]Sent: Monday, 29 June 2009 10:27 AMTo: Oliver TimofeiCc: Commercial, SVITZER Salvage B.V.; Tony RossSubject: RE: LEWEL KEA - APC AUSSIE 1/Final Costs/CD-i/OTOliverThank you for your email.Please forward your invoice and supporting documents to the following:Account PayableT-D Joint Venture Pty Ltd125A Royal Street East Perth WA 6004Tel 08 9225 2110Fax 08 9225 2120Regards;Mehran Barooni | Procurement, Subcontracts and Logistics Manager | Trident Australasia125A Royal Street, East Perth, WA 6004 Australia | Ph: +61 8 9225 2138 | Fax: +61 8 9225 2120 | Mob: +61 434 216 [email protected] | logo appears]" (Annexure 63 to the affidavit of Mr Timofei affirmed 25 August 2011)
On 3 July 2009 at 3:08pm Mr Timofei sent an email as follows:
"Dear Mehran,Following the APC AUSSIE 1 salvage assistance, we hereby present the final invoice, overview of the costings and all supporting vouchers.A few points that I want to re-iterate concerning the OOP's/invoice:Earlier on (26th of May) I have sent you the report from the tug WICKHAM made by the Captain onboard with the desired timings, you have then further received the fuel reports from the Chief Engineer. As you may recall the the tug WICKHAM consumed 14482 Litres in total during the operation.In that email I specifically stressed that following matter:"whilst assisting the barge Aussie 1 enter Newcastle Harbour 13:15 25/05/09 the harbour tug MAYFIELD had its main tow line cut by a sheave used for the barge anchors. This sheave protrudes outside the line of the barges hull. The tow line was for all intensive purposes new having only completed approximately 200 jobs. This line has a normal service life of 3000 jobs.The services of the MAYFIELD were provided under our Sundry Services provision in accordance with the United Kingdom Conditions for Towage and Other Services (Revised 1974) as amended by Svitzer 2008. The costs for replacement will be approximately $10,800 AUD."All vouchers are included in this email to support this matter.The total invoice is 418,036.10 USD including GST which is included in the final invoice." (Annexure 64 to the affidavit of Mr Timofei affirmed 25 August 2011)
An invoice addressed to "Account Payable, T-D Joint Venture Pty Ltd, 125A Royal Street East Perth WA 6004" was provided.
On Wednesday 8 July 2009, Mr Barooni replied saying:
"From: Mehran Barooni [[email protected]]Sent: Wednesday, 8 July 2009 5:18 PMTo: Oliver Timofei; Tony RossCc: Commercial, Wijsmuller Salvage B.V.; Krish RanigaSubject: RE: APC AUSSIE 1/Final Invoice SVITZER Salvage/CD-i/OTOliverThank you for your email and confirm receipt of invoices.In OOP section of invoices, I noted that value of items marked as 1, 2, 3 and 6 are inclusive of GST. Therefore application of another GST in your main invoice on the total sum is not correct. A consistency should be maintained in the invoicing where all the numbers adding up together either to be all inclusive or exclusive of tax.I understand the impact is very small. However I request you to revise the invoice and send the correct one.Another suggestion is to issue two invoice one for USD charges and one for AUD. However we can still process and pay, should you choose to convert them.Regards;Mehran Barooni | Procurement, Subcontracts and Logistics Manager | Trident Australasia125A Royal Street, East Perth, WA 6004 Australia | Ph: +61 8 9225 2138 | Fax: +61 8 9225 2120 | Mob: +61 434 216 [email protected] | logo appears]" (Annexure 65 to the affidavit of Mr Timofei affirmed 25 August 2011)
On Friday 10 July, Mr Timofei sent an amended calculation "as requested" to Mr Barooni at [email protected] and Mr Tony Ross at [email protected]. There was no further correspondence between the parties, although it would appear, from Mr Timofei's email of 12 August (annexure 68 to Mr Timofei's first affidavit) that he had requested an "update" as to when payment would be made. He did not receive a reply, he sent an email to Mr Barooni and to Mr Ross. Two days later, Mr Cox forwarded a letter on T-D Joint Venture Pty Ltd letterhead, a copy of which was emailed to Mr Timofei at 5:34pm on Friday 14 August 2009. The text of this letter was as follows:
"Date 14 Aug 2009Svitzer Salvage Australia Pty LtdLevel 22, Tower 2101 Grafton StreetBondi Junction NSW 2022Attention: Oliver Timofei, Commercial ManagerSubject: APC Aussie 1Salvage operation - Case Number 90263Summary of Expenses dated 10 June 2009Dear SirThank you for your email dated 12 August 2009 attaching the Summary of Expenses relating to the salvage of the APC Aussie 1 on 23 May 2009.The salvage operation is currently the subject of a dispute between T-D Joint Venture Pty Ltd and the owner of the APC Aussie 1, APC Marine Pty Ltd (APC). The dispute was referred to arbitration in July.APC, as the owner of the Vessel, are responsible for its insurance. We are currently making enquiries with APC and the underwriters with respect to the status of the insurance claim.We will keep you informed of the status of developments.Yours sincerely,T-D Joint Venture Pty Ltd ABN 51 124 308 685 in[Signature]___________DirectorPeter Cox" (Attachment to Annexure 68 to the affidavit of Mr Timofei affirmed 25 August 2011)
This was forwarded to Mr Timofei by email. The text of the email is set out at annexure 68 to Mr Timofei's first affidavit as follows:
"From: Mehran Barooni [[email protected]]Sent: Friday, 14 August 2009 5:34 PMTo: Oliver Timofei Cc: Peter Cox; Ashford, Alison; Wheelan Tony; McGuinness, Grace; Masters, James; Tony Ross; Joanne Robinson; Eilert HalvorsenSubject: RE: APC AUSSIE 1/Credit note/CD-r/OTAttachments: Letter to Svitzer Salvage 14 Aug 2009.pdfhi OliverSorry I was not able to get back to you sooner. Enclosed please find TD Joint Venture letter dated 14 August for your record. Regards;Mehran BarooniTD Joint Venture Pty Ltd125A Royal Street, East Perth, WA 6004 Australia | Ph: +61 8 9225 2138 | Fax: +61 8 9225 2120 | Mob: +61 434 216 [email protected] | type="1">This was the first time that the TDJV "footer" had been used by anyone, let alone Mr Barooni, in the course of this transaction.
Mr Timofei's response, less than an hour later, was as follows:
"From: Oliver TimofeiSent: Friday, 14 August 2009 6:21 PMTo: Mehran BarooniCc: Peter Cox; Ashford, Alison; Wheelan Tony; McGuinness, Grace; Masters, James; Tony Ross; Joanne Robinson; Eilert Halvorsen; Commercial, SVITZER Salvage B.V.; Drew ShannonSubject: RE: APC AUSSIE 1/Credit note/CD-r/OTDear Mehran,Thank you for coming back to me on the APC AUSSIE query and providing a more detailed description on the status from your side.We understand that in such cases many matters need to be sorted out especially with different parties involved, we experience that on many occasions.That being said, as you are aware the contract was agreed with Trident and thus we would appreciate a prompt outcome between both APC and Trident.For the time being would appreciate to be kept updated, and our main question is if there is a time frame as to predictions of payment toward SVITZER Salvage.We look forward to your reply." (Annexure 69 to the affidavit of Mr Timofei affirmed 25 August 2011)
Mr Barooni's email, sent eight minutes later, was as follows:
"OliverThanksJust to remind you that charterer of the barge Aussie 1 was T-D Joint Venture and this entity currently is the main EPCI contract holder of Longtom offshore gas field development project at Bass Strait.Regards;Mehran Barooni | Procurement and Subcontracts | T-D Joint Venture Pty Ltd - ABN 51 124 308 685| 125A Royal Street, East Perth, WA 6004 Australia | Ph: +61 8 9225 2138 | Fax: +61 8 9225 2120 | Mob: +61 434 216 [email protected]" (Annexure 70 to the affidavit of Mr Timofei affirmed 25 August 2011)
There was no further correspondence until Mr Timofei sent a further reminder email on Friday 4 September 2009 at 5:18pm, referring to a telephone conversation the week before, and asking for an update "concerning the APC AUSSIE and consequent delay in payment".
TDJV was wound up by the Supreme Court of the Northern Territory on 23 December 2009. Prior to this date, Svitzer had lodged a statutory demand for payment of debt with Trident. The liquidators, who were appointed following the winding up of TDJV prepared a report setting out full details of all company debts, claims, disputed payments and the like in relation to TDJV. The plaintiff is not referred to in any of these documents. There is a reference to the Lewek Kea and the Aussie 1 encountering difficulties off the coast of Newcastle as follows:
"At the completion of the APC Aussie 1's work on the project, the vessel was demobilised in Eden. The Lewek Kea and the APC Aussie 1 then set off to Singapore. On the return journey the vessels encountered adverse weather conditions and the tow rope parted between the Lewek Kea and the APC Aussie 1. After a number of failed attempts to recover the barge, a rescue crew, vessel and helicopter was sent to reattach the towlines to another tug boat, the Wickham. The APC Aussie 1 was secured to "Wickham" via the emergency tow bridle and, upon instructions from AMSA, was towed to and berthed at the Port of Newcastle, Australia.Whilst at Port, the Lewek Kea and the APC Aussie 1 underwent an inspection for damage by marine warranty surveyor who discovered that the vessels had sustained physical damage as a result of the incident..." (page 11, annexure 78 to the affidavit of Mr Timofei affirmed 25 August 2011)
The auditors went on to note that the Aussie 1 and Lewek Kea left Newcastle on 30 May 2009.
The parties did not address me on why, if the monies owing to Svitzer are payable by TDJV, there is no mention of Svitzer's involvement at all, and no information about the potential liability of TDJV for the not insubstantial sum that is the subject of the claim in these proceedings.
On 17 August 2010, the solicitors for the plaintiff wrote to the liquidators of TDJV enclosing a proof of debt, claiming interest pursuant to s 563B Corporations Act 2001 (Cth) and stating that pursuant to the ordinary principles of agency, TDJV was jointly liable along with Trident (its agent), in respect of the claim.
It has been necessary to set out each of these emails in detail in order to demonstrate exactly what disclosure (or, rather, lack of disclosure) there was in relation to the identity of the principal with whom Mr Timofei was dealing.
The facts in the case fall within the very narrow compass of whether, having regard all of the above documentary evidence and conflicting versions of telephone conversations, the plaintiff, who bears the onus of proof, can establish that Mr Barooni never disclosed to Mr Timofei that TDJV was the principal.
The submissions of the parties
The plaintiff submits:
(a) Mr Timofei's evidence, corroborated by his contemporaneous notes, is that he was never told about the entity "TDJV" or any of the other information Mr Barooni asserts that he provided, including the Longtom project, Nexus Energy or Darwin Offshore.
(b) Even on those few contemporaneous documents available from the defendant, namely Mr Barooni's notes and the emails sent by other Trident employees, all referred to Trident Australasia.
(c) The reference to "the JV" is not a reference to TDJV, but a description of information given to him by Mr Barooni after the Aussie 1 had been safely brought into Newcastle harbour.
(d) The email dated 29 June 2009 was a request for the address and company representative to which the account should be sent. Earlier accounts had been sent to Mr Barooni by email, and not to this billing address (see annexures 45 and 59 to Mr Timofei's first affidavit). Even AMSA considered it was dealing with Trident; Mr Larkin asked Mr Timofei for "the details of who you are dealing with at Trident" so that he could send AMSA's bill to Trident direct. Mr Timofei was still referring to "Trident" as late as Friday 5 June (annexure 58). It was only after these earlier emails that he asked for "the full-style from your goodselves" for the final invoice (annexure 62). Mr Barooni replied to Mr Timofei as late as 8 July 2009 with the Trident "footer" at the bottom of his email. When Mr Timofei sent an email pressing for payment on 12 August 2009, Mr Barooni replied on T-D Joint Venture Pty Ltd letterhead for the first time (annexure 68). Mr Cox's letter of 14 August 2009, referred to a dispute between the TDJV and "the owner of the APC Aussie 1, APC Marine Pty Ltd". Prior to that time, Mr Cox and other Trident employees had contacted Svitzer on Trident letterhead.
(e) Mr Timofei's evidence was based on actual recollection and his answers were consistent. Mr Barooni's evidence contained many inconsistencies. In particular, his evidence as to which conversation was the conversation in which he referred to TDJV, and how many times he mentioned it either then or thereafter, varied in cross-examination and was also inconsistent with the evidence of his practice.Mr Barooni has not been able to provide his notes, and the notes he has provided refer only to "Trident".
The defendant submits:
(a) It is implausible that, having made the mistake of thinking that Mr Barooni had something to do with the Lewek Kea, Mr Timofei did not make further enquiries as to the company Mr Barooni represented.
(b) Having made none of the enquiries of Trident referred to by Mr Timofei in paragraph 57 of his first affidavit, he nevertheless proceeded to issue an invoice to a different entity, TDJV, without confirming that the invoice was being issued because of a request by Trident to issue it to a third party. This does not make common or commercial sense.
(c) The only scenario possible is that Mr Barooni informed Mr Timofei that he worked for TDJV and that TDJV was the contracting party. The reference to "the JV" in the 25 May email is evidence that Mr Timofei knew he was dealing with TDJV.
(d) In his email of 29 June, Mr Timofei was simply seeking the "full-style" of address for TDJV. As a result of receiving this information, he issued a tax invoice and credit note without raising any concern as to the purchase order being made to a party other than the party with whom he had been contracting (if his evidence as to his belief is accepted).
(e) In the context of the dispute between the plaintiff and defendant, the onus lies upon the plaintiff, and on the balance of probabilities, to prove that Mr Barooni did not inform Mr Timofei that he was representing TDJV, regardless of what was on the footer of his emails, and the emails of other persons from Trident.
Conclusions
Not only Mr Barooni, but everyone who dealt with Mr Timofei concerning the salvaging of the Aussie 1, seems to have been unusually secretive about the name of the company for whom they were working. It was not only Mr Timofei who thought he was dealing with the defendant; Mr Burns' notes refer to "Trident". Mr Larkin of AMSA similarly thought that Trident was involved (annexure 55 to the affidavit of Mr Timofei). AMSA provided a helicopter to Svitzer on the understanding that it was for use by Trident. Mr Barooni also said that when he had approached four other salvage operators, he had not told them the name of the company for whom he worked.
All of the contemporaneous documentation points to Mr Timofei believing that he was dealing with the company whose name appeared on the bottom of every email he received throughout the transaction, namely the defendant.
Mr Barooni's evidence in response to questions, not only in cross-examination but in evidence in reply, was inconsistent and unpersuasive. Although in his affidavit he was confident that he had referred to TDJV and provided full details of the joint venture in his first conversation with Mr Timofei, he contradicted this in cross-examination (T 144, 146, 147 and 173). In the submissions of the defendant, these inconsistencies are summarised as amounting to a claim that "in one of his early conversations with Mr Timofei, but definitely on 22 May" (written submissions paragraph 26) he said he represented TDJV. The transcript reference given for this is T 144 lines 35-40. The other evidence Mr Barooni gave on this issue is submitted to be merely corroborative, namely the evidence he gave at T 144, 161, 164 and 168 (written submissions, paragraph 27).
The submission that "in one of his early conversations with Mr Timofei, but definitely on 22 May" Mr Timofei was informed that Mr Barooni was acting on behalf of TDJV is inconsistent with the chronology provided by the defendant, which identifies only one telephone call, namely at approximately 8:00pm to 8:30pm. I do not accept the submission that Mr Barooni was "clear" on this evidence that he identified TDJV. All the contemporaneous documentary evidence, as well as Mr Timofei's oral evidence, points to the identification of the defendant as the contracting party.
Mr Barooni's evidence about the different versions of his email footer and why he changed it on 14 August 2009, was not persuasive. It was a straightforward matter to change the footer to identify TDJV:
"Q. You say you couldn't change it?A. You have to change it manually at each time. I mean, effectively delete it and retype it again.Q. Yes, but you could do that, couldn't you, if it was wrong?A. If it is wrong, yes, but, you see, many communication, it just impractical.Q. Well, can I just, first of all, take you to page 56 of the annexures to your first affidavit, document number 16.A. Page 56, yes.Q. Page 56, yes.A. Document 16.Q. Document 16, have you got that? Is that the standard footer that your computer produced when you sent an email in May of 2009?A. That is correct.Q. That's the one that the computer automatically puts on your emails?A. That is correct.Q. But you could change that if you wanted the footer to appear differently; correct?A. That is correct." (T 185 lines 16-39)
Mr Barooni conceded that any reasonable recipient of his May emails would have understood that he was acting on behalf of the defendant, and not another entity called TDJV. There is no explanation as to why not only Mr Barooni but other Trident employees used Trident footers at all stages up until advising of the dispute with the Aussie 1 owners in August 2009.
In addition, Mr Barooni's recollection of a number of the conversations was poor. This was not simply a matter of being unable to state exactly what his words were, but an inability to give an account of why, for example, he rejected the LOF terms (T 176). His only precise recollection of a conversation is the reference to TDJV, but the degree of precision with which it was given in his affidavit fell away in cross-examination. Counsel for the plaintiff in his helpful written submissions has referred to the following further examples of poor recollection: T 132 line 42, T 134 line 35, T 137 line 20 to T 138 line 26, T 139 line 18, T 142 lines 18-30, T 142 lines 42-46, T 143 line 35, T 147 line 46, T 156 line 8, T 159 line 36, T 161 line 43, T 162 line 47, T 163 line 49, T 165 lines 5-16, T 176 line 6, T 177 line 17, T 178 lines 10-13, T 182 lines 1-8, T 182 lines 41-50, T 183 line 12, T 191 line 21 and T 192 line 27. Mr Barooni frankly admitted he could not remember not only conversations, but even the identities of the persons to whom he spoke.
Mr Barooni said he took notes of the telephone conversations but "lost"them:
"Q. You did not have a handwritten notebook of what you did on the 22nd, 23rd, 24th and 25 May, do you?A. Yeah, there was a piece of paper in front of me and I started to write all the telephone numbers that I was collecting, all the names that I was collecting, all the name of the ships, name of the people and then that that piece of paper was with me for I mean several months but then I lost it.
Q. No one is being critical of you, sometimes we lose notes?
A. Yeah, no one has and I didn't think that it was important after what I heard.
Q. But I take it from your last answer that you lost that piece of paper back in the middle of 2009, is that right?
A. Exactly, yeah, correct." (T 135 lines 20-30)
I find this difficult to accept. The defendant and Mr Barooni knew as early as August 2009 that there was a dispute as to payment of the monies, following which Mr Timofei wrote pointing out that the contract "was agreed with Trident" (annexure 70 to Mr Timofei's first affidavit). Mr Barooni sent the 14 August email saying "just to remind you that the charterer of the barge Aussie 1 was T-D Joint Venture" (annexure 70 to Mr Timofei's first affidavit) because this was an important issue in the minds of himself and other Trident employees such as Mr Cox.
According to the Ernst & Young report which is annexure 78 to Mr Timofei's first affidavit, there were already legal proceedings involving the APC Aussie 1, which had been the subject of an order for arrest in the Federal Court of Australia on 9 April 2009. The Aussie 1 arrived in Eden on 15 May and left on 18 May under tow by the Lewek Kea. TDJV and APC Marine were in court in a further application to arrest the ship on 24 June 2009; this was resolved in TDJV's favour on 25 June 2009. On 28 June 2009, EMAS arrested the APC Aussie 1 and sought security, and those proceedings continued up until a provisional liquidator was appointed on 15 December 2009. The liquidator's report does not refer to the role of Svitzer, the plaintiff, in relation to the rescue of the ship; all the credit is given to TDJV who "organised a rescue team, helicopter and emergency tow vessel "Wickham" to attend to the APC Aussie 1, secure the vessel and tow it to the Port of Newcastle NSW under the direction of AMSA". The plaintiff is not even listed amongst the "sundry debtors" of the company. The absence of Mr Barooni's notes is all the more surprising given this maelstrom of litigation concerning the Aussie 1. Mr Barooni's failure to keep them, in circumstances where their contents would have been an important corroborative tool, entitles me to take a "robust" approach to proof: LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 at 508; Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 at 59; Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 at [74]; McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 at [156].
I am satisfied, taking all of the above material into account, that Mr Barooni never told Mr Timofei that the principal for whom he acted was TDJV. I find that at all relevant times he told Mr Timofei that the company he represented was the defendant.
The law relating to undisclosed principals
In Teheran-Europe Co Ltd v S T Belton Tractors Ltd [1968] 2 QB 545 Lord Denning MR stated at 552:
"It is a well-established rule of English law that an undisclosed principal can sue and be sued on a contract, even though his name and even his existence is undisclosed, save in those cases when the terms of the contract expressly or impliedly confine it to the parties to it. This rule is an anomaly, but is justified by business convenience. It has been held so for many years."
The parties did not address me as to the law relating to undisclosed principals, and the questions which commonly arise in cases of this kind (see for example Carminco Gold & Resources Ltd v Findlay & Co Stockbrokers (Underwriters) Pty Ltd (2007) 243 ALR 472) need not be entered into. All the parties have asked me to do is to make a finding as to whether I accept the evidence of Mr Timofei or Mr Barooni as to the identity of the company which Mr Barooni was representing. I have found that Mr Barooni told Mr Timofei that he represented the defendant, and this will entitle the plaintiff to judgment.
The parties also agreed that there is no dispute as to the quantum of the claim. Accordingly, I have made orders for judgment for the plaintiff in the form sought, namely for the amount claimed in the statement of claim.
Orders
(1) Judgment for the plaintiff for USD $416,307.07.
(2) Defendant pay plaintiff's costs.
(3) Liberty to restore in relation to interest and costs.
(4) Exhibits retained for 28 days.
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Decision last updated: 14 September 2012
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