Yamashita, S.& H. v Pearls Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA 1
QUEENSLAND DISTRICT REGISTRY

1 QLD G304 of 1988
GENERAL DIVISION 1

BETWEEN: SIGERU YAMASHITA AND HIROKO YAMASHITA

Applicants
AND: PEARLS PTY LIMITED

First Respondent

AND: NEVILLE CRANE

Second Respondent

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MINUTES OF ORDER ! ,

JUDGE MAKING ORDER: PINCUS J.
DATE OF ORDER: 20 JULY 1989
WHERE MADE: BRISBANE

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THE COURT ORDERS THAT:

1. That Mr Ronald Arthur Rannard, of c/- P.0. Box 113, Cairns, 4870 be appointed to inquire into and report upon the following questions, namely
(i) whether the fishing vessel "Richard Male", the subject of these proceedings was, when delivered to the male applicant under the contract of sale between the parties -

2. The said Ronald Arthur Rannard shall inquire into and report, and for that purpose may inform himself and report upon any facts relevant to his inquiry
as he sees fit, for example by telephone inquiries, and the parties may supply him with copies of affidavits, reports or other information.
3. The said Ronald Arthur Rannard shall send his report (one copy) to the Registrar, Federal Court of Australia, M.L.C. Court, 15-23 Adelaide Street, Brisbane.
4. The remuneration of the said Ronald Arthur Rannard is fixed at $2,000 and the question of a proper sum for any attendance before the Court (if subsequently required) is reserved.
5 . The applicants and respondents shall be jointly and severally liable to pay to the said Ronald Arthur Rannard the said sum of $2,000, but the said sum shall in the first instance be paid to the Registrar forthwith by the applicants.
6. The said Ronald Arthur Rannard may, if he considers it impractical to resolve any point relevant to his report, defer resolution of the same and report on the rest.
7 . Costs be reserved.
(a) seaworthy;

(b) in a good condition, in survey, fitted and ready to put to sea to work;
( c ) in good condition.
(ii) if no to (i) or any part thereof, what remedial steps were necessary, by way of repair or otherwise?

NOTE : Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGIBTRY

1 QLD G304 of 1988

GENERAL DIVISION 1

BETWEEN: SIGERU YANASHITA AND HIROKO YANASHITA

Applicants
AND: PEARLS PTY LIMITED

First Respondent

AND: NEVILLE CRANE

Second Respondent

PINCUS J. 20 JULY 1989

EX TEMPORE REASONS FOR JUDGMENT

This is a case about an allegedly defective vessel. Both sides have obtained expert reports. Since it is common ground that the costs of fully litigating the matter will be excessive in comparison with the amount in issue, I have decided to appoint a Court expert to report on some of the issues under

Order 34 of the Federal Court Rules. The applicants suggest the appointment of Mr R.A. Rannard of Cairns, and the respondents (who do not want an independent expert appointed) say that if one is to

be appointed, he should be a West Australian. The advantage of the course proposed by the respondents is argued to be that the Cairns expert will not know enough about the particular type of
boat .

Having examined the affidavits so far filed, it seems to me unlikely that Mr Rannard will have much difficulty in reporting on the issues, which do not seem to me excessively complex.

The applicantsr suggestion is that the expert advise on questions such as "Would good boat building practice require the first ten pairs of ribs from the stem to be secured to the vessel's keel piece?" I cannot see that this sort of inquiry is going to take the matter very far.

The statement of claim says, among other things, the vessel was sold as being "seaworthy" and as being "in a good condition, in survey, fitted and ready to put to sea to work". The defence says the vessel was said to be "in good condition". In my opinion, whether it fulfilled any of these descriptions is a matter on which an expert might properly be appointed to report. There are other matters raised by the pleadings; for example, the question of whether it is of merchantable quality. Those ordinary expressions are ones upon which an expert might properly be asked to give a view.

I certify that this and th* preceding page a r e a
t rue copy of the reasons for judgment herein o f 111s
Honour Mr Justice Pincus

Associate

The Federal Court of Australia in the Queensland District Registry dealt with a case involving Siguru Yamashita and Hiroko Yamashita, who were the applicants, and Pearls Pty Limited and Neville Crane, who were the respondents. The applicants purchased a fishing vessel, the "Richard Male", from the first respondent and were contesting its seaworthiness and condition as described in the contract of sale. The applicants sought an expert to examine the vessel and report on its condition, while the respondents opposed the appointment of an independent expert. The central issue before the court was whether to appoint a court expert to determine the vessel's seaworthiness and condition as per the contract terms.

The court considered the costs of fully litigating the matter against the amount in dispute and opted to appoint a court expert to report on specific issues, in accordance with Order 34 of the Federal Court Rules. The applicants suggested Mr. R.A. Rannard from Cairns, while the respondents preferred a West Australian expert, arguing that a Cairns expert might lack sufficient knowledge about the specific type of boat. However, the court found the issues to be not overly complex and deemed Mr. Rannard's expertise sufficient. The court held that an expert could appropriately report on whether the vessel met the descriptions of being "seaworthy" and "in good condition, in survey, fitted and ready to put to sea to work", as well as other related questions.

In light of the above considerations, the court ordered the appointment of Mr. Ronald Arthur Rannard to inquire into and report on whether the vessel was seaworthy and in the condition described in the contract, and if not, what remedial steps were necessary. The report was to be submitted to the Registrar, and the remuneration was set at $2,000, with costs to be borne jointly and severally by the applicants and respondents. The court also reserved the right to determine any additional attendance fees for the expert. The court further noted that costs were reserved for future determination.

The court's final orders included the appointment of Mr. Rannard as the court expert, the fixing of his remuneration, and the joint and several liability of the parties for the payment of the expert's fees. The costs were reserved for later determination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	20 JULY 1989
WHERE MADE:	BRISBANE

2.	The said Ronald Arthur Rannard shall inquire into	and report, and for that purpose may inform himself	and report upon any facts relevant to his inquiry
as he sees fit, for example by telephone inquiries, and the parties may supply him with copies of affidavits, reports or other information.
3.	The said Ronald Arthur Rannard shall send his report (one copy) to the Registrar, Federal Court of Australia, M.L.C. Court, 15-23 Adelaide Street, Brisbane.
4.	The remuneration of the said Ronald Arthur Rannard is fixed at $2,000 and the question of a proper sum for any attendance before the Court (if subsequently required) is reserved.
5 .	The applicants and respondents shall be jointly and severally liable to pay to the said Ronald Arthur Rannard the said sum of $2,000, but the said sum shall in the first instance be paid to the Registrar forthwith by the applicants.
6.	The said Ronald Arthur Rannard may, if he considers it impractical to resolve any point relevant to his report, defer resolution of the same and report on the rest.
7 .	Costs be reserved.

Order 34 of the Federal Court Rules. The applicants suggest the appointment of Mr R.A. Rannard of Cairns, and the respondents (who	do not want an independent expert appointed) say that if one is to
be appointed, he should be a West Australian. The advantage of the course proposed by the respondents is argued to be that the Cairns expert will not know enough about the particular type of
boat .
Having examined the affidavits so far filed, it seems to me unlikely that Mr Rannard will have much difficulty in reporting on the issues, which do not seem to me excessively complex.
The applicantsr suggestion is that the expert advise on questions such as "Would good boat building practice require the first ten pairs of ribs from the stem to be secured to the vessel's keel piece?" I cannot see that this sort of inquiry is going to take the matter very far.
The statement of claim says, among other things, the vessel was sold as being "seaworthy" and as being "in a good condition, in survey, fitted and ready to put to sea to work". The defence says the vessel was said to be "in good condition". In my opinion, whether it fulfilled any of these descriptions is a matter on which an expert might properly be appointed to report. There are other matters raised by the pleadings; for example, the question of whether it is of merchantable quality. Those ordinary expressions are ones upon which an expert might properly be asked to give a view.