Sweet v Buzianczuk
[2002] QDC 193
•3/07/2002
DISTRICT COURT OF QUEENSLAND
CITATION: Sweet v Buzianczuk [2002] QDC 193 PARTIES: RICHARD PETER SWEET (plaintiff)
V
ROMAN STAN BUZIANCZUK (defendant)FILE NO/S: 69/1998 DIVISION: District Court PROCEEDING: Trial DELIVERED ON: 3 July 2002 DELIVERED AT: Maroochydore HEARING DATE: 25-26 June 2002 JUDGE: K S Dodds DCJ ORDER: Declare the agreement made on or about 13 May 1997
ought be specifically performed and carried into
execution and adjudge the same accordingly.Order the defendant forthwith deliver to the solicitor for
the plaintiff all documents, executed as required by the
Queensland Fish Management Authority, to effect the
transfer of the Primary Commercial Fishing Boat Licence
with the Boat Marks FFGD with all endorsements
thereon held by him to the plaintiff.Order the parties have liberty to apply. Order the defendant pay the plaintiff’s costs of and incidental to the proceeding. CATCHWORDS: CONTRACTS – DISCHARGE, BREACH AND
DEFENCES TO ACTION FOR BREACH –
PERFORMANCE - where a written agreement existed for the
sale of plaintiff’s vessel to defendant and for the sale of
defendant’s fishing licence to plaintiff - where another
written agreement provided plaintiff to lease the use of the
fishing licence to defendant for 12 months - acknowledged
and agreed that plaintiff would hold a lien over vessel until
defendant paid balance purchase price, lease payments,
insurance premium, and interest - vessel was in seaworthy
condition prior to sale - defendant repaired and modified
vessel – defendant abandoned vessel - defendant has never
paid any money to plaintiff nor transferred the fishing licence
back to plaintiff after 12 months - whether plaintiff was
aware of any defect in vessel or misled defendant prior to
sale.Axelsen & Ors v O’Brien (1949) 80 CLR 219 COUNSEL: S J English for plaintiff SOLICITORS: Paul Pattison for plaintiff
Defendant: self-represented
In this proceeding the plaintiff claimed specific performance of a contract between the plaintiff and the defendant made partly orally and partly in writing on or about 13 May, 1997; further or alternatively, a declaration the plaintiff is the beneficial owner of a fishing licence bearing registered symbols FFGD and endorsements L1, L3+1, C1, N1, N6, and C3 and that the defendant as trustee holds the licence on trust for the plaintiff; an order the licence be transferred to the plaintiff; alternatively, damages for breach of contract, interest, and costs.
The plaintiff was the owner of a 8.49 metre boat “An Tamara” (the vessel) which he had purchased in October 1995 in Victoria for $30 000.00. At the time of purchase there was a certificate of survey from the Marine Board of Victoria over the vessel operational until 16 December, 1995 for its use within 15 miles of the Victorian coast.
In June 1996, a bargain was struck between the plaintiff and the defendant for the sale of the vessel to the defendant for $35 000.00. The initial approach leading to the bargain came from the defendant. That bargain was the subject of a written sale agreement between the parties prepared by the defendant’s solicitor and signed at the offices of the defendant’s solicitor.
At the time of signing the June 1996 agreement, the defendant was the holder of a fishing licence registered symbols FFGD with endorsements L1, L3+1, C1, N1, N6, and C3. The agreement provided that the plaintiff would sell and the defendant would buy the “An Tamara” for $35 000.00 and that the defendant would sell and the plaintiff would buy the fishing licence for $27 000.00. It further provided that: the plaintiff would lease the licence to the defendant for twelve months for $6 500.00; the defendant would pay to the plaintiff the sum of $1 106.20 being the adjusted insurance premium in relation to the then current liability and pleasure craft policy on the vessel and due to expire on 18 May, 1997; the defendant would pay the $8 000.00 balance purchase price of the vessel, the $6 500.00, and the $1 106.20, together with interest at twelve percent per annum on those amounts by way of monthly instalments at the rate of $1 456.60 per month on or before the 30th day of each month. At that rate if payments were made every month for twelve months commencing immediately the total amount owing including interest would be paid. Other terms of the agreement provided that the plaintiff agreed to do all things and sign all documents necessary to increase the insured value of the vessel to $62 000.00, both parties would do all things and sign all documents necessary to transfer the vessel and licence to each other, and that the defendant acknowledged and agreed that the plaintiff would hold a lien over the vessel until the amounts referred to above were paid in full.
At the same time the parties entered into the written sale agreement, the parties signed a written lease agreement. That agreement provided that the plaintiff agreed to lease the use of the fishing licence to the defendant for a period of twelve months for the sum of $6 500.00 payable by monthly instalments of $541.66. It contained an option for a further twelve months lease at a value to be negotiated by reference to the consumer price index.
The reference in the sale agreement to the vendor increasing the insured value of the vessel to $62 000.00 may have had it genesis in a letter from one Ken Ainscough, a marine surveyor, dated 5 April, 1996. See exhibit 3. That letter is unsigned on paper headed ‘Dolphin Marine Supplies’, which includes Lawries Marina referred to in other evidence and was addressed to the plaintiff. It read inter alia:
“Thank you for giving us the opportunity to survey An-Tamara. The vessel appears to be solidly built and in sound condition when taking her age into consideration. The hull and structure appears to be very sound and there is evidence that the hull and fit-out was originally built to survey requirements. Recent modifications and improvement work has been carried out on the vessel and this work appears to be completed to a good standard.
Although the vessel was not sighted out of water I consider the vessel as inspected was in a seaworthy condition and that the safety equipment carried make An-Tamara suitable for its purpose of commercial fishing in coastal waters”.
The letter went on to suggest some alterations to increase the safety and seaworthiness of the vessel. It then continued:
“It is considered that the approximate replacement value of the vessel as inspected would be $62 000.00. This value was derived as follows [there followed values assigned to the hull superstructure propulsion system and various components of the vessel totalling $62 000.00]. While every effort has been made to fully inspect the vessel and its equipment it is not always possible to sight every part of the vessel, every piece of equipment and its fittings”.
The letter, or a copy of it, was sighted by the defendant before he purchased the vessel.
| [7] | Following the June 1996 agreement, the vessel was delivered to the defendant who commenced to use it. The fishing licence was transferred to the plaintiff. |
On 25 March, 1997 the Fisheries Tribunal (the Tribunal), established by the Fisheries Act 1994 (the Act), published its reasons and decision in an appeal to it by the plaintiff against a decision of the Queensland Fish Management Authority (QFMA) refusing his application for a Managed Area A endorsement for the spanner crab fishery in respect of a Primary Commercial Fishing Boat Licence held by the plaintiff. The application had been made on 8 January, 1997. The licence referred to was that transferred to him as a result of the June 1996 agreement.
The reasons provide a background to the alleged agreement of 13 May, 1997. The defendant had applied for a Managed Area A endorsement in the spanner crab fishery prior to June 1995 which application was refused. The defendant did not appeal but in its reasons of 25 March, 1997 the Tribunal expressed a view the findings and the reasons of the QMFA for refusal of that application were flawed.
By notice of appeal dated 3 December, 1996 the plaintiff appealed against the QFMA refusal to grant the defendant’s application. There was a hearing on 8 January, 1997 when there was an objection to the competency of the appeal in that the appellant was not a person whose interest was adversely affected by the decision of the QFMA when the decision was made and therefore had no standing as an appellant. The appeal was adjourned so that the plaintiff could apply to the QFMA for the endorsement. This he did on 8 January, 1997. It was refused. The plaintiff appealed that refusal and that was the subject of the reasons of the Tribunal of 25 March, 1997. Ultimately, the Tribunal found that the appeal should be refused because the appellant had been unable to establish a personal ability to comply with the requirements which an applicant was required to demonstrate pursuant to the terms of the Act to obtain the endorsement.
| [11] | On all occasions before the Tribunal the defendant appears to have been an active participant in the prosecution of the appeals. |
The Tribunal had made it clear in its reasons that factual errors made by the QFMA when considering the defendant’s original application would have resulted in a successful appeal. Following the dismissal of the appeal, it was orally agreed between the plaintiff and the defendant that the plaintiff would transfer the fishing licence back to the defendant who would apply to the QFMA for the required endorsement and when obtained transfer the licence back to the plaintiff. This was the agreement on or about 13 May sued upon. In furtherance of that agreement, both the plaintiff and the defendant signed in blank, and had the signatures witnessed, a QMFA Form 4 application which the plaintiff retained for transfer of a commercial fishing boat licence.
The matter came before the Tribunal again on 14 October, 1997. The defendant was the appellant. The Tribunal allowed the appeal and the endorsement sought was obtained.
The licence has not been transferred by the defendant to the plaintiff. Up until 14 October, 1997 the defendant had paid no money to the plaintiff. He has never paid any money to the plaintiff. According to the defendant, after the successful appeal he borrowed a further $2 000.00 from the plaintiff and took the vessel to Lucinda to fish. Subsequently, he spoke to the plaintiff asking him what he owed. He said the plaintiff told him $28 000.00. Subsequently, to that (not surprisingly since no payment had been made) he said the plaintiff contacted him and he (the defendant) told him, “You’ve had me by the short and curlies, I’ve got my licence back, I’ve given you free labour and an enormous amount of my time, a lot of Adrians, you’ve put some of your own time in there too, I spent a lot of money on materials on that boat. She’s rebuilt, she’s in perfect working order, she’s moored in the centre, you pick your damn boat up, I’m cutting my losses and I’m keeping the licence and I’m going to transfer the licence back to my father”.
The plaintiff gave evidence of a conversation with the defendant in December 1997 in which the defendant in effect told him he was not going to transfer the licence back to the plaintiff but was going to transfer it to his father. The plaintiff said, and I accept, that he did not agree to abandon the agreement earlier entered into with the defendant. There is no doubt the defendant unilaterally abandoned it. The plaintiff attempted to effect the transfer of the licence but was unable to because, in addition to the signed application form for transfer, he required documents, which remained in the possession of the defendant, and he was unable to obtain them.
The defendant left the vessel moored at Lucinda. The plaintiff sent some men to Lucinda in January 1998 to recover it and it was brought to Bundaberg where it was placed on a hardstand for some years. In 2001 it was put to work again as a fishing boat.
On 26 February, 1998 the plaintiff’s solicitor wrote to the defendant requiring the defendant undertake all things reasonably necessary to complete the transfer of ownership of the fishing licence to the plaintiff. This did not occur and this proceeding was commenced in March 1998.
| [18] | The defendant’s defence and counterclaim advanced a number of reasons why the plaintiff’s claim should not succeed. |
Firstly, it denied almost all the facts pleaded by the plaintiff.
Secondly, it alleged that any obligation upon the defendant to transfer the fishing licence to the plaintiff was subject to payment by the plaintiff to the defendant of an increase in value of the fishing licence resulting from the spanner crab endorsement obtained by the defendant. As to this, there was no evidence of any agreement between the plaintiff and the defendant that the plaintiff would pay a greater amount for the licence to represent an increase in value of the fishing licence after the endorsement.
Thirdly, it alleged that the agreement between the plaintiff and the defendant was discharged by the consent of the parties. As to this, I find the plaintiff did not agree that he would take back the boat and the defendant could retain the fishing licence, or that in any other way the agreements about the sale of the boat and the transfer of the fishing licence were to be discharged.
Fourthly, the balance of the matters in the defence and counterclaim revolved around allegations that the vessel was not structurally sound and was in need of significant repair, that the plaintiff was aware of that, that the plaintiff warranted the vessel was structurally sound, that the plaintiff was estopped from “denying that he is the owner of the “An Tamara” and that the plaintiff was in breach of the terms of the June 1996 agreement or the May 1997 agreement or both because of the condition of the vessel and because the plaintiff failed to effect or cause to be effected repairs to the vessel. It also alleged that the plaintiff agreed no payments pursuant to the agreement need be made until the vessel was seaworthy. It claimed the defendant had suffered loss and damage as a result because of an inability to use the vessel for fishing as intended, because of time and money expended on repairs he had made and because the plaintiff had retaken possession of the vessel. He sought variously the return of the vessel, $1 000.00 per month for use of the vessel since January 1998, $126 000.00 damages for loss of fishing catch, $30 000.00 for the enhanced value of the fishing licence with the Managed Area A endorsement, $62 000.00 damages in lieu of the vessel, and damages of $45 000.00 for repairs to the vessel.
I accept that the plaintiff made some repairs to the hull of the vessel after he had undertaken some fishing trips in her. He also repaired or replaced various componentry in the vessel. He made some modifications to the vessel to suit himself. The vessel was at least twenty years old. Although it was fitted with a new Volvo Penta inboard-outboard propulsion system the replacement value of which, according to Mr Ainscough’s letter, was $28 500.00. It was the most valuable single component of the boat including the hull, superstructure, and awning which was the next most valuable part. The defendant had every opportunity to inspect the boat before he bought it. There is no evidence that the plaintiff, nor any evidence from which an inference can reasonably be drawn, that the plaintiff was aware of any defect in the boat or that he misled the defendant in any way. I do not accept that when purchased it was incapable of being used for its intended purpose. I do not accept the plaintiff warranted the condition of the vessel.
It seems likely from the defendant’s evidence in the trial and from the transcripts of evidence of the proceedings before the Tribunal that the defendant was in financial difficulties in 1996 preceding his approach to the plaintiff resulting in the June 1996 agreement. The defendant wanted to obtain a boat to use for commercial fishing and he used the licence he owned to achieve that. There is no evidence that he was other than a mature adult of at lease average intelligence or that the plaintiff misled him in any way. It may be that the price attributed to the licence was advantageous for the plaintiff and that things did not go well for the defendant in his venture and/or his personal affairs. Whilst one may feel sympathy for a person in such circumstances, that is not something which will affect the legal outcome of a bargain between two adults not attended by any disadvantages recognised by the law and not affected by any circumstances recognised by the law as altering or striking a bargain down.
What is to be done? Possession of the vessel was taken by the plaintiff in January 1998. It was put on a hard stand at Burnett Heads where it remained until 2001. Presently it is working as a fishing vessel skippered by a Kevin Watson. There is no evidence of the arrangements between the plaintiff and Watson.
There was evidence in the plaintiff’s case about the plaintiff’s loss and damage. See exhibit 8. The defendant has paid no money to the plaintiff pursuant to the June 1996 agreement or otherwise. Pursuant to the June 1996 agreement, $15 606.20 plus interest thereon at twelve percent per annum is owing by the defendant to the plaintiff. Other amounts are claimed by the plaintiff such as the cost of recovery of the vessel from Lucinda, storage on a hard stand, and repairs.
The plaintiff is seeking orders which will result in the fishing licence being transferred to him. As to the vessel, counsel for the plaintiff informed me that the plaintiff will relinquish possession of it to the defendant when the defendant pays him what he owes him.
I have considered whether there are any circumstances including the plaintiff’s continuing possession of the vessel disentitling the plaintiff to the primary orders he seeks. Hardship to a defendant is a factor which may indicate such an order should not be made. There must be more though than that a defendant has made an unwise or risky decision: Axelsen & Ors v O’Brien (1949) 80 CLR 219 at 226.
There was no independent evidence of the value of the licence at the time when the June 1996 agreement was entered into other than an assertion by the defendant before the Tribunal in March 1997 that a spanner crab licence was worth $60 000.00 to $110 000.00. At that time, according to the transcript of those proceedings, he told the Tribunal he had sold the licence to the plaintiff for $37 000.00 as he “needed the money to keep going”.
| [30] | It may be the defendant struck an unwise bargain, but I do not consider the evidence shows that for that reason the orders sought ought not be made. |
The fishing licence which, according to the bargain struck, should have been transferred to the plaintiff, I would think is not one of a kind. No doubt there are others which an interested person may seek to purchase. As I have noted, the only evidence about the value of such a licence around the time when the bargains were struck was the plaintiff’s assertion before the Tribunal which I am not prepared to accept as reliable. There was no evidence about its present value. The lack of uniqueness I have referred to is a factor in considering whether damages rather than orders of the type sought by the plaintiff would be an adequate remedy. Here though the evidence is clear enough that an award of damages against the defendant would be worthless. The plaintiff is in possession of the vessel but the original bargain was for the licence in exchange for the vessel. The defendant paid nothing to the plaintiff. The present situation is largely, if not entirely, due to the defendant’s own decisions and actions.
I have considered whether I should make the orders sought by the plaintiff on terms requiring the sale of the vessel by an independent person with any balance remaining after the expenses of sale, money owing to the plaintiff according to the June 1996 bargain, and expenses the plaintiff properly incurred in recovering and maintaining the condition of the vessel after the defendant left it at Lucinda, to be paid to the defendant.
The difficulty is in reaching any fair conclusion about expenses properly incurred in retrieving, storing, and repairing the vessel and in forming any view of the present value of the vessel. The evidence is simply deficient.
The conclusion I have reached is that the evidence does not justify refusal of the orders sought by the plaintiff. The fate of the vessel is best left to the defendant to pursue if deemed worthwhile.
I declare that the agreement made between the plaintiff and the defendant on or about 13 May, 1997 mentioned in the statement of claim ought be specifically performed and carried into execution and adjudge the same accordingly.
I order the defendant forthwith deliver to the solicitor for the plaintiff all documents, executed as required by the Queensland Fish Management Authority, to effect the transfer of the Primary Commercial Fishing Boat Licence with the Boat Marks FFGD with all endorsements thereon held by him to the plaintiff.
I order the parties have liberty to apply.
I order the defendant pay the plaintiff’s costs of and incidental to the proceeding.
0