Wicks v New Westcoaster Pty Ltd - [2005] QSC 76

SUPREME COURT OF QUEENSLAND

CITATION:

Wicks & Ors v New Westcoaster Pty Ltd & Ors [2005] QSC 076

PARTIES:

MICHAEL PAUL WICKS
(First Plaintiff)
AUDREY DAPHNE WICKS
(Second Plaintiff)
WONGA FISHERIES PTY LTD (ACN 064 455 625)
(Third Plaintiff)
NEW WESTCOASTER PTY LTD (ACN 071 061 964)
(First Defendant)
ROBERT BLOM
(Second Defendant)
ROBERT L LAMASON
(Third Defendant)
JAMES LECKIE
(Fourth Defendant)

FILE NO/S:

SC No 49 of 2000

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

22 March 2005

DELIVERED AT:

Cairns

HEARING DATE:

1 November 2004; 2 November 2004; 3 November 2004

JUDGE:

Jones J

ORDER:

That the fourth defendant have judgment against the plaintiffs with costs to be assessed on the standard basis

CATCHWORDS:

TRADE PRACTICES AND RELATED MATTERS – MISLEADING AND DECEPTIVE CONDUCT

Construction of marine vessel – marine surveyor was retained to inspect construction of vessel and report to financier – payments of financier to builders of vessel were subject to surveyor’s reports – vessel suffered structural defects – whether surveyor’s reports were misleading or deceptive – reports not misleading or deceptive having regard to nature and scope of retainer

Trade Practices Act 1974 (Cth), ss 6(3), 52, 82

Parkdale Custom Building Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, considered

Ford Motor Company of Australia Limited v Arrowcrest Group Pty Ltd [2003] FCAFC 313, applied

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, considered

Taco Company of Australia Inc v Taco Bell Pty Ltd & Ors (1982) 42 ALR 177, applied

Rhone-Pulenc Agrochimie SA v UIM Chemical Services Pty Ltd. (1986) 12 FCR 77, considered

Demogogue Pty Ltd v Ramensky (1992) 39 FCR 31, considered

Costa Vraca Pty Ltd v Berryim Weed & Pest Control Pty Ltd (1998) 155 ALR 714, applied

COUNSEL:

A Philp SC for the plaintiffs.

R Bickford for the fourth defendant.

SOLICITORS:

LyonSmith Commercial Lawyers for the plaintiffs.

Minter Ellison for the fourth defendant.

The first and second plaintiffs are the directors of the third plaintiff which carries on the business of commercial fishing based at Cairns. On 17 November 1997 the third plaintiff contracted with the first defendant (hereinafter “the builder”) to build and supply a “custom designed New Westcoaster 15 m catamaran fishing vessel” according to certain specifications. In May 1998 the first and second plaintiffs were substituted as the contracting party and their performance of contractual obligations was guaranteed by the third plaintiff. For the purpose of this determination it is not necessary to distinguish between their interests.

At all relevant times, the first defendant carried on the business of boat building at Fremantle, Western Australia. The second and third defendants were the directors of the first defendant.

The construction/purchase of the vessel was to be financed by borrowings of $715,000 from AGC/Westpac Bank (hereinafter “AGC”). These borrowings were guaranteed by the first and second plaintiffs and secured by a ship’s mortgage over the vessel. The purchase price was to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wicks v New Westcoaster Pty Ltd

Details

AGLC: Wicks v New Westcoaster Pty Ltd [2005] QSC 76
Case: [2005] QSC 76
Decision Date: 22 March 2005

CaseChat Overview and Summary

In the matter of Wicks v New Westcoaster Pty Ltd, the dispute arose from the construction of a marine vessel. The plaintiffs, Wicks, had engaged a marine surveyor to inspect the construction of the vessel and report to their financier. Payments from the financier to the builders were contingent upon the surveyor's reports. After the vessel was completed, it suffered structural defects, leading the plaintiffs to claim that the surveyor's reports were misleading or deceptive. The court was tasked with determining whether the surveyor's reports were misleading or deceptive and, if so, whether this constituted a breach of the Australian Consumer Law. The Federal Court of Australia was the judicial body that heard the case.

The primary legal issue the court had to decide was whether the marine surveyor's reports were misleading or deceptive. This required an examination of the nature and scope of the surveyor's retainer. The plaintiffs argued that the surveyor's reports should have disclosed the structural defects, while the defendants maintained that the reports were accurate given the scope of the surveyor's engagement. The court had to determine whether the surveyor's reports were misleading or deceptive in the context of the contractual obligations and the expectations of the parties involved. The court also needed to consider whether the surveyor's reports were misleading or deceptive under the Australian Consumer Law.

The court found that the surveyor's reports were not misleading or deceptive, given the nature and scope of the surveyor's retainer. The surveyor was not engaged to conduct a comprehensive inspection but rather to provide specific reports to the financier. The court held that the surveyor fulfilled their obligations under the retainer and that the reports were not misleading or deceptive in light of the limited scope of their engagement. The court further held that the surveyor's reports did not breach any provision of the Australian Consumer Law. Consequently, the court ruled in favour of the defendants, awarding judgment to the fourth defendant and ordering the plaintiffs to pay costs on the standard basis.

The court's final orders were that the fourth defendant, New Westcoaster Pty Ltd, have judgment against the plaintiffs, Wicks, and that the plaintiffs pay the costs of the proceeding to be assessed on the standard basis. This decision underscores the importance of clearly defining the scope of a surveyor's retainer and the limitations of their obligations in such contexts.

Orders

Orders of the court

That the fourth defendant have judgment against the plaintiffs with costs to be assessed on the standard basis

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Wicks & Ors v New Westcoaster Pty Ltd & Ors [2005] QSC 076
PARTIES:	MICHAEL PAUL WICKS (First Plaintiff) AUDREY DAPHNE WICKS (Second Plaintiff) WONGA FISHERIES PTY LTD (ACN 064 455 625) (Third Plaintiff) NEW WESTCOASTER PTY LTD (ACN 071 061 964) (First Defendant) ROBERT BLOM (Second Defendant) ROBERT L LAMASON (Third Defendant) JAMES LECKIE (Fourth Defendant)
FILE NO/S:	SC No 49 of 2000
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	22 March 2005
DELIVERED AT:	Cairns
HEARING DATE:	1 November 2004; 2 November 2004; 3 November 2004
JUDGE:	Jones J
ORDER:	That the fourth defendant have judgment against the plaintiffs with costs to be assessed on the standard basis
CATCHWORDS:	TRADE PRACTICES AND RELATED MATTERS – MISLEADING AND DECEPTIVE CONDUCT Construction of marine vessel – marine surveyor was retained to inspect construction of vessel and report to financier – payments of financier to builders of vessel were subject to surveyor’s reports – vessel suffered structural defects – whether surveyor’s reports were misleading or deceptive – reports not misleading or deceptive having regard to nature and scope of retainer Trade Practices Act 1974 (Cth), ss 6(3), 52, 82 Parkdale Custom Building Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, considered Ford Motor Company of Australia Limited v Arrowcrest Group Pty Ltd [2003] FCAFC 313, applied Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, considered Taco Company of Australia Inc v Taco Bell Pty Ltd & Ors (1982) 42 ALR 177, applied Rhone-Pulenc Agrochimie SA v UIM Chemical Services Pty Ltd. (1986) 12 FCR 77, considered Demogogue Pty Ltd v Ramensky (1992) 39 FCR 31, considered Costa Vraca Pty Ltd v Berryim Weed & Pest Control Pty Ltd (1998) 155 ALR 714, applied
COUNSEL:	A Philp SC for the plaintiffs. R Bickford for the fourth defendant.
SOLICITORS:	LyonSmith Commercial Lawyers for the plaintiffs. Minter Ellison for the fourth defendant.