Warwick v Antons Trawling Company Limited HC Auckland CL40/98 - [2002] NZHC 75

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY CL40/98

BETWEEN WARWICK AND SMITH
Plaintiff

AND ANTONS TRAWLING COMPANY LIMITED
First Defendant

AND ESPERANCE FISHING CO LIMITED
Second Defendant

AND ORNEAGAN DEVELOPMENTS LIMITED
Third Defendant

Hearing: 24-28 September, 1-3 and 9-11 October 2001

Counsel: P J K Spring, J E Boyack and S O McAnally for Plaintiff
N W Ingram QC and M J Logan for Defendants

Judgment: 12 February 2002

JUDGMENT OF RODNEY HANSEN J

Solicitors:
Keegan Alexander, P O Box 999, Auckland for Plaintiff
Vlatkovich & McGowan, P O Box 10054, Dominion Road, Auckland for Defendants

TABLE OF CONTENTS

Para

Introduction [1] - [31]

Pleadings and issues [32] - [38]

Was there an agreement? [39] - [70]

Certainty of agreement [71] - [75]

Terms of agreement [76] - [79]

Has the plaintiff fulfilled his obligations under the agreement? [80] - [87]

Have the defendants breached their obligations under the agreement? [88] - [93]

What is the plaintiff’s entitlement? [94] - [100]

Summary - answers to specific issues [101]

Future conduct of the proceeding [102]

Introduction

[1] The plaintiff, a fisherman, claims that the defendants agreed that he should receive 10% of any additional quota allocated to them as a result of his assistance in establishing the existence of a commercial Orange Roughy fishery.

Background facts

[2] The three defendants, who I will refer to collectively as “Antons”, are associated companies engaged in commercial fishing, fish processing and the sale of fish products. They were founded by Mr Tony Barbarich. He died on 31 July 1993. Most of the shares are now owned by his children, Milan and Marie Barbarich. Both worked in the business. Milan was general manager and became managing director on his father’s death. Marie worked in the office, leaving last year when she moved out of Auckland.

[3] In the mid-1980s Antons became interested in exploiting the Orange Roughy fisheries which had been located in deep waters around New Zealand. Initial discoveries of the species had been in areas off the South Island. These fisheries were exploited by specially equipped factory-freezer trawlers which were able to steam the long distances to the fishing grounds and preserve the catch during the return journey. Antons’ vessels were not equipped for such long distance operations. The Barbarichs decided to concentrate their efforts on waters off the coast of the North Island, within range of Antons’ processing facilities.

[4] Their initial focus was on an area then known as Fisheries Management Area 2 which covered the southern east coast of the North Island, south of East Cape. They committed their vessel, “Serenity II”, to a joint Ministry of Agriculture and Fisheries (“MAF”) and fishing industry research programme to evaluate the commercial potential for Orange Roughy in that area. (On 1 July 1995 the ministry responsible for fisheries became the Ministry of Fisheries. For convenience, I will refer to the responsible ministry throughout as “MAF”.) In 1985 the “Serenity II” landed sufficient Orange Roughy to satisfy MAF that the area could sustain a commercial Orange Roughy fishery.

[5] In 1985 and 1986 the “Serenity II” participated in a second MAF sponsored exploratory fishing programme in what is known as Area 1. It covers territorial waters in the northern half of the North Island from East Cape to a point south of the Manukau Harbour on the west coast. The “Serenity II” carried out exploratory fishing in Area 1 off the west coast, north of Auckland. Over the same period another vessel, the “Wanaka”, was chartered by MAF to carry out more extensive surveys of both the east and west coasts of the North Island.

[6] In 1986 the quota management system was introduced. Individual transferable quota (“ITQ”) were issued by MAF for individual species in each quota management area. The total amount of quota allocated in each area was based on MAF’s assessment of the total allowable commercial catch (“TACC”). The fishery for each species in an area is commonly referred to by reference to a standard abbreviation for the species and the number of the area. The abbreviation for Orange Roughy is ORH. The fishery for that species in Area 1 is therefore abbreviated to ORH1.

[7] One of Anton’s companies, Esperance Fishing Co Limited, was allocated ITQ of 100 tonnes of Orange Roughy in Area 2A based on its catch history, commitment to and dependence on the fishery and Antons’ participation in the 1985 research programme. A nominal quota of 190 tonnes was allocated for Area 1 based on the research data provided by the “Wanaka” surveys. As fishers had little or no catch history in ORH1, most of the quota was retained by the Crown.

[8] In 1989/90 a proportional system of allocating quota was introduced. Instead of allocating fixed tonnages, the Crown allocated quota as a proportion of the available TACC. Formerly, any additional quota resulting from an increase in TACC was retained by the Crown and disposed of as it saw fit. However, it was exposed to claims for compensation if a reduction in TACC resulted in the need to reduce the amount of quota. Under the proportional system, both the benefits and risks of changes in TACC rested with holders of ITQ. Existing quota-holders would receive a proportionate increase in quota resulting from an increase in TACC. This offered to quota-holders the prospect of obtaining increased quota without having to pay.

[9] As a relatively small player, without the financial resources to purchase large amounts of quota, the change in policy was seen by Antons as providing a commercial opportunity for it to acquire quota by investing in fisheries which were not commercially proven. The Orange Roughy fisheries off the northern half of the North Island were seen by the Barbarichs as in this category. They acquired 126 tons of ORH1 quota as well as some quota for other deepwater species in exchange for 35 tonnes of snapper quota. For the purpose of the exchange, the Orange Roughy quota was valued at approximately $700,000. Antons also acquired two vessels which were suitable for undertaking fishing for deepwater species. The “Serenity II” was essentially an in-shore vessel which was not suitable for working deepwater species over a prolonged period. In late 1992 Antons purchased the thirty metre stern trawler, “Seamount Enterprise” and the twenty-five metre stern trawler, the “Margaret Philippa”. Both were upgraded to fish for Orange Roughy and other deepwater species in depths greater than 800 metres.

[10] Over the period 1986-1991 Antons successfully fished to the limit of its quota in ORH2A. In 1986 and on three occasions in 1989 the “Serenity II” caught small quantities of Orange Roughy in Area 1. In July 1992 it returned with a catch of almost 10 tonnes. Soon after it was replaced by the “Margaret Philippa” and “Seamount Enterprise”. They concentrated their activities in Area 2 but from time to time caught modest quantities of Orange Roughy in Area 1.

[11] By 1993 research and experienced gained in fishing for Orange Roughy generally had established that the fish tended to aggregate around undersea features known as seamounts or knolls, particularly at spawning time. The “Wanaka” surveys had shown signs of Orange Roughy at or near such features. According to Dr Malcolm Clark, a marine scientist called by the plaintiff who was responsible for the “Wanaka” surveys, such features present particular difficulties for fishers. He believed that after the mid-eighties continuing improvements in navigational aids and net technology greatly enhanced the ability of fishers to explore and exploit fish stocks around undersea features.

[12] During 1993 and into 1994 the “Seamount Enterprise” and “Margaret Philippa” fished mainly in Area 2 but, from time to time, they targeted Orange Roughy and other species in Area 1. There were four catches of Orange Roughy exceeding a tonne, the biggest of 5.7 tonnes. All were caught in waters adjacent to seamount features. A total of 27 tonnes was caught in Area 1 between 1986 and 1993.

[13] In April 1994 the plaintiff, Warwick Smith, joined the “Seamount Enterprise” as skipper. He has been a commercial fisherman for twenty-seven years, beginning as a 15-year-old working on trawlers in the South Island. His early work experience included work on trawlers catching Orange Roughy in the Chatham Rise when that fishery was first opening up.

[14] In early 1994 the plaintiff had approached Milan Barbarich to see if Antons was prepared to lease to him and an associate the “Margaret Philippa” to fish for Orange Roughy outside the 200 mile zone. Mr Barbarich was not interested in a leasing arrangement but offered the plaintiff the position of master of the “Seamount Enterprise”. He accepted. From 23 April 1994 to 25 August 1996 he remained in that position, making a total of 109 trips. He and his crew were engaged by Antons on its usual terms, the standard Auckland Share of Catch fishing agreement. Under a share of catch agreement, the master and crew are paid a percentage of the value of the catch, after deduction of specified costs. The share payable under Auckland share fishermen’s terms is 53%. That is divided between the master and crew based on seniority. With a four-man crew, the skipper will usually receive 28% with lesser percentages paid in declining order to the first mate, engineer and deck hand.

[15] The plaintiff was provided with historical research data of fishing in Area 1. This included the records of the “Serenity II”, the “Margaret Philippa” and earlier trips by the “Seamount Enterprise”. He was also provided with charts and echo-sounding records of some of the prominent undersea features in Area 1.

[16] Mr Smith’s first two trips were to Area 2. On his third voyage to Area 2 he also fished in Area 1 and caught four tonnes of Orange Roughy. On the fourth trip, between 26 May and 2 June 1994, he fished a site known as the Mercury knoll in Area 1 in the Bay of Plenty. He landed a total of ten tonnes, the largest quantity landed in Area 1 to that time.

[17] Mr Smith says that following that trip he met with Mr Barbarich who he said was excited by the size of the catch. He claims that Mr Barbarich told him that he could continue exploring Area 1 and, if he was able to prove a commercial Orange Roughy fishery there, Antons would give him a percentage of any additional quota issued to them for Orange Roughy or its cash value. Mr Smith says that no percentage was mentioned at that meeting. Mr Barbarich denies that there was any such discussion.

[18] Mr Smith immediately returned to the Mercury knoll and returned with a catch of 69 tonnes. After that trip a further meeting took place, on either 8 or 9 June 1994, at Anton’s premises in Mt Wellington. On this occasion Mr Smith was accompanied by a friend and fellow crew member, Gavin Sims. There was a discussion about quota. This was a matter of considerable importance as the plaintiff’s catches had already accounted for 85 of the 126 tonnes of quota held by Antons. Mr Barbarich was anxious to involve MAF in any further fishing in Area 1. Additional quota could result only if a MAF scientist or observer was present to verify fishing locations. Mr Barbarich wanted to assemble the information necessary to verify that a commercially viable fishery existed. Mr Smith claims that Mr Barbarich told him that if he undertook a programme of exploratory fishing which established the existence of a commercial fishery in Area 1, Antons would transfer to him 10% of any additional quota allocated to them as a result of his find. Mr Smith says he agreed and promised to “put 150%” into finding a fishery. Mr Barbarich denies that there was any such conversation. He says there was no suggestion of Mr Smith receiving any benefit additional to his returns from the share of catch arrangement.

[19] A MAF observer was onboard for the next voyage which took place between 11 and 13 June 1994. A further 67 tonnes was caught in the area of the Mercury knoll. The scientific observer was present. This further large catch exhausted Antons’ quota and made it necessary for further quota to be leased to cover the quantity caught.

[20] Mr Barbarich was frustrated. Orange Roughy were clearly present in Area 1 in large numbers but could not be caught because of quota constraints. Antons applied to MAF for a special permit which would enable it to carry out research fishing. A special permit was granted authorising Antons to catch up to 75 tonnes of Orange Roughy within a defined area which included the Mercury knoll and another nearby seamount called the Colville knoll. This area became known as the Mercury/Colville Box. Voyages were undertaken in July and trawl surveys undertaken at the direction of MAF scientists, one of whom was Dr Clark. The results were promising. A further 35 tonnes of Orange Roughy was landed. Further trawl surveys were conducted in September 1994 which, although not producing large catches of Orange Roughy, provided further positive indications of a commercial fishery.

[21] The 1994/95 fishing year began on 1 October 1994. By February 1995 Antons had exhausted its Orange Roughy quota. This underlined the necessity for a research programme which would establish to the satisfaction of MAF that an increased TACC and larger quota were justified. Antons took the lead in initiating a further programme of research in conjunction with MAF and other quota-holders in Area 1. A further special permit was granted which permitted up to 200 tonnes of Orange Roughy to be taken from the Mercury/Colville Box during the period 14-30 June 1995. All surveys were undertaken in the course of three voyages which accounted for almost all of the catch authorised by the special permit. Two of the catches exceeded 70 tonnes.

[22] The Minister of Fisheries accepted a recommendation from MAF officers to increase the TACC for Orange Roughy in Area 1 by 1,000 tonnes to 1,190 tonnes from 1 October 1995 on condition that the additional quota be used exclusively in the Mercury/Colville Box under the provisions of an Adaptive Management Programme (“AMP”) which had been proposed by the industry as a means of ensuring continuing research on the resource. Although without a statutory basis, AMP’s are used where the size of the fish stock has not been conclusively established and permits further information to be acquired while fishing takes place. Quota-holders are permitted to fish the stock at an increased level subject to strict research requirements.

[23] For the first two years of the five-year AMP programme, the Mercury/Colville Box yielded close to the TACC. Of the 663 tonnes which Antons received of the additional quota, it caught 625 tonnes and 645 tonnes respectively in the years 1995/96 and 1996/97. Thereafter fishing in the area declined dramatically. When the five-year AMP came to an end in 2000, the TACC for the Mercury/Colville Box was reduced to 35 tonnes. It was reduced further to 30 tonnes for the current year ending 30 September 2002. However, for the balance of Area 1 outside the Mercury/Colville Box the TACC for Area 1 was set at 800 tonnes for the 2000/01 fishing year, increased to 1,400 tonnes for the current year. Both are subject to catch limits in four specified areas.

[24] In August 1996 the plaintiff and Antons parted company. Relations between the plaintiff and Mr Barbarich had deteriorated over the previous year, despite the success both were enjoying. The plaintiff had experienced personal and health problems. His marriage had broken down. He was being treated for bowel cancer which he said had been diagnosed the previous year. He was in financial trouble. In early 1995 this had necessitated his asking for, and receiving, financial assistance from Antons to meet mortgage repayments. Some repayments were made from his earnings but a balance of $25,000 remained payable to Antons when he left.

[25] Although the plaintiff had continued to return good catches from both Area 1 and Area 2, Mr Barbarich had become increasingly dissatisfied with other aspects of his performance. These included the conduct of him and his crew whilst at sea. Mr Barbarich felt the plaintiff’s personal and health problems did not excuse what he saw as a casual attitude and a breakdown in discipline on board ship. For his part, the plaintiff found Mr Barbarich demanding, ungrateful and unsympathetic.

[26] Before the plaintiff left, Mr Barbarich required that he sign an acknowledgement of debt for the balance of his loan from Antons. The plaintiff left behind two nets and a net monitor which he said could be kept by Antons and set off against the loan. He did not raise the subject of the quota share. Nor did he raise it when, in February 1997, he received a letter from Anton’s solicitor making formal demand for repayment of the debt. Indeed, it was not until late in 1998 that he notified Antons of his intention to claim 10% of the additional Orange Roughy quota issued for Area 1.

[27] The plaintiff said he did not make a claim at an early stage because of advice received soon after leaving Antons from a Mr Peter McKinnon who is the secretary of the Fishermen’s Guild, then known as the New Zealand Share Fishermen’s Association. The plaintiff explained to Mr McKinnon in a telephone conversation that Antons had agreed to give him some quota in return for his finding an Orange Roughy fishery. He asked if the Association could assist him to enforce the agreement. Mr McKinnon advised him that as the agreement was not in writing he would be wasting his time.

[28] The plaintiff says that he was deterred by this advice from taking any steps to mount a claim against Antons until he discussed a possible claim with another former employee of Antons who told him that he had come to a similar arrangement with Mr Tony Barbarich in December 1992. Colin Bray was employed by Antons from 1985 until 1993. For some years he was the skipper of the “Serenity II”. He was a valued employee who accompanied Milan Barbarich to Australia when the decision was made to purchase the “Margaret Philippa” and the “Seamount Enterprise”. The Barbarichs confided in him as to their long term plans to develop an Orange Roughy fishery in Area 1. In December 1992 Mr Bray asked Tony Barbarich for a share of any increase in quota for Orange Roughy in Area 1 if it was developed into a commercial fishery. He asked for 10% of any increased quota allocated to Antons. His request was made on the basis that he had proved his loyalty to Antons and wanted a long term business relationship with the company. In the end, Tony Barbarich agreed to his having 10% of any increased Orange Roughy quota provided that he was still working for Antons at the time the increased quota was allocated. There was nothing in writing. Mr Bray said that Milan Barbarich was present for part of the meeting at which the proposal was discussed but may not have been present for that part of the discussion. Milan Barbarich says that he was not present when the topic was discussed and was never advised of the deal by his father.

[29] In August 1997 Mr Bray started work as a deck hand on a fishing vessel of which Warwick Smith was then master. As they came to know one another and compared notes on their experience with Antons, the subject of a claim for Orange Roughy quota was raised. Mr Bray disclosed the details of his agreement with Tony Barbarich to the plaintiff. They decided to join forces to pursue a case against Antons.

[30] They first sought the advice of Peter Simunovich, the proprietor of another Auckland-based fishing company, for whom Mr Smith worked after leaving Antons. His advice to them both echoed that of Mr McKinnon to Mr Smith. As neither had anything in writing, any claim against Antons would not succeed.

[31] Undaunted, both the plaintiff and Mr Bray sought legal advice. Both met with counsel, Mr Boyack, on two occasions. Mr Bray was advised that his claim could not succeed because of the lapse of time and because his agreement with Tony Barbarich was conditional on his staying with the company. The advice to the plaintiff was more positive. A claim by him was intimated to Anton’s solicitors through his counsel in mid-1998 and a detailed letter of claim written on 18 November 1998. Proceedings were issued the following month.

Pleadings and issues

[32] As pleaded at the outset of the hearing, the plaintiff’s claim relied on a contract entered into at the first of two meetings at which he alleged a grant of quota to him was discussed. That contract was pleaded to have been varied at the second meeting when it is alleged the amount of quota to be allocated to him was fixed at 10%.

[33] At the conclusion of the hearing I permitted an amendment to the statement of claim to plead that the relevant contract was made at the second meeting on or about 8 June. Mr Ingram did not oppose the amendment on the basis that the defendant’s breach of the contract was pleaded to have occurred on or about 17 October 1995 when the defendants received notice of the increased quota for ORH1. That removed the possibility of a limitation defence which might have been available if the breach had occurred more than six years before the date of amendment.

[34] The amended statement of claim pleaded the contract in the following way:

“On or about the 8th day of June 1994, the Plaintiff entered into a partnership with Milan Barbarich on behalf of the Defendant to search for an Orange Roughy fishery in Area 1.

Particulars

(a) The partnership was oral and its terms were negotiated between the Plaintiff and Mr Milan Barbarich on behalf of the Defendants in early June 1994 at the premises of the First Defendant.

(b) Pursuant to the partnership, the plaintiff would explore Area 1 for a commercial Orange Roughy fishery using the “Seamount Enterprise”.

10% of any additional Orange Roughy ITQ (“Individual Transferable Quota”) issued to the Defendants for Orange Roughy in Area 1;

or he would receive a cash payment equivalent to 10% of any such quota allocated.”

[35] The plaintiff claims that he undertook investigations pursuant to the contract from June to September 1994 and from October 1994 to September 1995 and that his investigations and confirmatory fishing efforts confirmed the existence of a substantial new Orange Roughy fishery in Area 1. He claims that, by virtue of the increased quota amounting to 663.157 tonnes allocated to Anton companies with effect from 1 October 1995, he became entitled to 66.3157 tonnes of Orange Roughy quota. He claims an entitlement to a further 13.8 tonnes of quota, making approximately 80 tonnes in all, as a result of the increase in total quota for Area 1 on 1 October 2001 from 1,190 tonnes to 1,400 tonnes.

[36] The plaintiff seeks a declaration that the 80 tonnes of quota are held upon trust for him and an order requiring Antons to transfer the quota to him. Alternatively, an enquiry is sought as to the current market value of the plaintiff’s quota. He also seeks an enquiry into the damage suffered as a result of the defendant’s failure to transfer the quota to him. A claim for exemplary damages was abandoned at the hearing.

[37] The defendants deny that any agreement was made by which quota would be transferred to the plaintiff. Four affirmative defences are pleaded:

[a] Any such agreement is void for uncertainty.

[b] If there was a binding agreement, it was subject to an implied term that:

[i] The plaintiff would remain engaged by Antons until the completion of any exploratory programme required to establish the existence of any new sustainable fishery including Orange Roughy, and

[ii] The exploratory programme would result in the allocation to the defendants of individual transferable quota.

The termination by the plaintiff of his engagement with Antons prior to the completion of the adaptive management programme is said to have brought the agreement to an end.

[c] Any agreement between the plaintiff and Antons did not result in the allocation of increased quota to Antons as a result of the reduction in quota for Orange Roughy within the Mercury/Colville Box at the conclusion of the adaptive management programme to a level below that which was held when the agreement was entered into.

[d] If there was an agreement which was not terminated and the plaintiff fulfilled his obligations under it, his entitlement to quota is limited to 10% of Anton’s share of the current quota for the Mercury/Colville Box.

[38] Before trial the parties agreed that any hearing as to quantum should be deferred pending determination of the following issues:

(a) Did the Plaintiff enter into an agreement with the First Defendant (as alleged in the Third Amended Statement of Claim)?

(b) If the answer to (a) is yes:

(i) What were the terms of that agreement?

(ii) Has the Plaintiff fulfilled his obligations in respect of the terms of the agreement?

(iii) Have the Defendants (or any of them) breached their obligations under or arising from the agreement?

(iv) If the answer to (iii) above is yes, then subject to the Plaintiff satisfying the Court at the subsequent trial (the purposes of such trial being to determine the issue of relief) that the Plaintiff is entitled to relief by way of specific performances, does the Plaintiff have any entitlement to:

(1) More or less 70 tonnes of Orange Roughy ITQ (as alleged in the Third Amended Statement of Claim); or

(2) 10% of more or less 66% of 30 tonnes of Orange Roughy ITQ (as alleged in the Statement of Defence to the Third Amended Statement of Claim); or

(3) Some other amount of Orange Roughy ITQ as determined by the Court (at the initial trial)?”

To these should be added the further affirmative defence of whether any agreement was void for uncertainty.

Was there an agreement?

[39] In order to determine the threshold issue, I must first decide whose account of the two crucial meetings early June 1994 is correct - Mr Smith’s or Mr Barbarich’s. The plaintiff’s account has the direct support of Mr Sims who was present at the second meeting and received a measure of corroboration from those he subsequently spoke to about what he said took place. Mr Barbarich’s evidence stands alone but I am invited to consider a number of circumstances which it is said make it inherently unlikely that he would have made any agreement to give quota to Mr Smith.

[40] Before embarking on a detailed review of that evidence, I think it is preferable that I state at the outset that I have come to the view that the plaintiff’s account of the meeting is the correct one. Although often hesitant and not always forthcoming in his evidence, he presented as a careful witness whose evidence on critical issues survived a long and searching cross-examination.

[41] I was impressed too by Mr Sims’ evidence and the way he gave it. Mr Ingram submitted that his account of the second meeting had a contrived air about it. My assessment is just the opposite. I thought he gave a straight forward and unembroidered account. In assessing his evidence, I have had full regard to his personal relationship with Mr Smith who had known him for fifteen years and was responsible for securing him employment on several occasions, including his job as deck hand on the “Seamount Enterprise”. They were close enough friends for him to be invited to Mr Smith’s wedding four years ago. It was also submitted that Mr Sims’ evidence should be approached with caution because he was owed money by Mr Smith as a result of an ill-fated enterprise in the Faroe Islands. That claim was based on the evidence of another crew member on the “Seamount Enterprise”, Ashley Gibson, who said he learned this from a conversation with Messrs Sims and Smith on board ship. I accept their denials that any money is owed. I found Mr Gibson an unconvincing witness on this issue.

[42] Michael Kerr, a fisherman who worked as first mate on the “Seamount Enterprise” from October 1995 to May 1996, said that when the plaintiff offered him the job, he told him that he had discovered a new Orange Roughy fishery and would receive 10% of any quota issued to Antons as a result. Mr Kerr also said that in conversation with the plaintiff, Milan Barbarich would refer to “our quota” when speaking of the Orange Roughy quota for Area 1.

[43] Mr Kerr was also a personal friend of the plaintiff. He had worked with him on and off over a period of fifteen years. Mr Smith had also been responsible for finding him employment on two occasions. I was also asked to have regard to the possibility of his bearing ill-will towards Milan Barbarich who abruptly and without explanation terminated his employment on the “Seamount Enterprise”. I did not, however, detect any animus towards Mr Barbarich in the evidence of Mr Kerr for this reason or any other. I accept, however, that Mr Kerr’s relationship with Mr Smith requires that his evidence be scrutinised with special care.

[44] I accept Mr Kerr’s evidence that he was told of the agreement by Mr Smith. I accept also that the plaintiff is unlikely to have spoken to him in these terms unless he was a party to such an agreement. I do not, however, place any great weight on the use by Milan Barbarich of the term “our quota”. I think that it is just as likely to have reflected the multiple entities and individuals who had ownership of the quota.

[45] It is not in dispute that Mr Smith also spoke of an offer of quota to Mr McKinnon of the New Zealand Share Fishermen’s Association when he sought his advice as earlier recounted. The initial telephone conversation was, however, in general terms. Mr Smith referred to an agreement that he would get some quota in return for finding “the Orange Roughy fishery” but no percentage was specified.

[46] The third person to whom the plaintiff spoke about his claimed right to a share of quota was Colin Bray, who was promised a 10% share of quota by Mr Tony Barbarich in 1992. Mr Bray was called by the defence. He has resumed a business relationship with the defendants, selling Antons most of the fish he catches on a boat he operates jointly with his son. He had initially accepted that the plaintiff had entered into an agreement with Antons which was not dissimilar to his own. He had been willing to join forces with him to pursue a claim until discouraged by Mr Boyack’s advice from continuing. In his evidence he sought to distance himself from his earlier view, suggesting that the plaintiff’s claim that he was offered 10% of quota by Milan Barbarich derived from his own disclosure to Mr Smith of the agreement he had made with Tony Barbarich. He also disputed the plaintiff’s evidence that he had told Mr Boyack in the plaintiff’s presence that Milan Barbarich was present when his agreement with Tony Barbarich was made.

[47] I am not persuaded that Mr Bray’s evidence on these issues is to be preferred to his earlier stance. He gave no cogent explanation for his change of mind about the merits of the plaintiff’s claim.

[48] I turn now to consider the factors urged on me by Mr Ingram as militating against the existence of the agreement.

[49] First it was contended that it was unnecessary and contrary to commercial common sense for Milan Barbarich to make the offer. For ten years he and his father had worked towards the goal of establishing an Orange Roughy fishery in the waters off the northern half of the North Island. They had developed a business strategy directed to that end. They had invested over $1M in the vessels, equipment and quota which would enable them to explore and develop the fishery. They had found encouraging signs and had acquired valuable knowledge about likely habitats for Orange Roughy. The catches of 10 tonnes and 69 tonnes respectively which preceded the two meetings were accompanied by news of another massive catch in the same area by another boat. There were clear indications that the dream was about to become a reality.

[50] Although the plaintiff had succeeded in spectacular fashion, it was submitted on behalf of the defendants that it was unnecessary and irrational for Antons to promise him a share of quota in order to secure his continuing involvement. He needed the work and the money. He had had only twenty-two weeks work in total over the preceding four years and had been involved in two unsuccessful business ventures. He had been content to accept engagement on a share of catch basis even though he would be required to do some fishing in the unproven deep waters of Area 1. At the time of the meetings his successful catches had already provided him with a good income with the promise of more to come. For the present at least, he was content. There is no suggestion that he was seeking a better or different deal at that time.

[51] In these circumstances, the defence asks why Milan Barbarich would offer what he was under no pressure to give.

[52] Mr Barbarich rather over-stated the position when he spoke in evidence of giving away his heritage, but he was promising to part with a significant and valuable asset to someone he had known for only six weeks. I think the reasons for his doing so are to be found in a combination of factors.

[53] First, experienced and hardened man of business though he was (and is), Mr Barbarich could not have been unaffected by the mood of the moment. This was an exciting time for him. He must have felt elation, particularly after the second catch which by itself more than doubled the total of all catches by Antons in Area 1 over the previous ten years. Feelings of generosity and gratitude would not have been amiss. In hindsight, it could be seen as an unnecessarily generous, even extravagant gesture, but by no means inexplicable in the mood of the moment.

[54] I think also there were sound business reasons why Mr Barbarich should have made the offer. Despite the highly encouraging catches, he knew he still had a long way to go before he could establish a commercial Orange Roughy fishery. As the MAF scientist, Dr Clark, pointed out, catching a large quantity of fish is only the first of the two necessary indications of a commercial fishery. The second is the consistency of catch necessary to sustain a fishery. It was necessary for Antons to establish a record of significant catches. In addition, the fishery had to be proved to the satisfaction of MAF if it was to be translated into the increase in TACC necessary to produce the quota which was the ultimate objective. Mr Barbarich knew that would require a programme of research and exploratory fishing which might not be particularly remunerative to the crew of the vessel.

[55] Mr Barbarich would have known that some additional incentive may have been required if he was to secure the services of the plaintiff for the period needed to explore and develop the fishery. There is no doubt that exploratory and research fishing can be to the financial disadvantage of masters and crew who are being paid on a share of catch basis. They are fishing in unproven and sometimes unexplored grounds. They may be requested to fish at the direction of MAF research officers. Fishing is more speculative. The risk of losing or damaging gear is higher.

[56] These considerations have offen led to special arrangements being made to reward fishermen undertaking exploratory fishing. They may take the form of a daily rate or a guaranteed minimum payment under the share of catch arrangement. They may be allocated “plum” areas to fish where they are virtually guaranteed of substantial catches. Michael Connolly, a manager with the Sealord fishing company and with long experience in the fishing industry, said arrangements to remunerate crew for exploratory fishing in his experience contained one or both of these components. He had himself never heard of skippers and crew being offered a share of quota but it appears not to be completely unheard of. Mr McKinnon of the Fishermen’s Guild knew of such arrangements in the Orange Roughy fisheries off the Wairarapa coast in the mid to late 1980s.

[57] Mr Barbarich would have seen it as in Antons’ interests to offer the plaintiff some incentive for remaining for the sustained and lengthy period required to complete the exploratory fishing and research needed to establish a commercial fishery. There were already indications that he had special skills as an Orange Roughy fisherman. It was suggested that his success was in large part attributable to the information provided to him based on work done by others. There is no doubt also that improved navigational and net technology helped to make possible successful fishing in the vicinity of undersea features. But the contribution of the individual skipper is crucial. Among the attributes identified by Dr Clark are his thoughts, persistence, fishing plan and technique. At the time of the June meetings the plaintiff was already showing that he had the requisite blend of skills, experience and determination.

[58] Mr Barbarich would not have been unaware of the benefits of retaining the services of a skipper who was already demonstrating a high level of expertise. I accept Mr Ingram’s submission that in early June at least it would not have been necessary for Antons to offer the plaintiff a special incentive. At least for as long as he was making good catches and earning well on a share of catch basis, the plaintiff may have been prepared to undertake an exploratory fishing programme without further reward. But the issue is not whether the plaintiff required the incentive but whether Mr Barbarich offered it.

[59] I think also that Mr Barbarich would have had in his mind the offer made by his father to Colin Bray. He denies knowledge of it but I am satisfied that he was made aware of it. He and his father worked as a team to build the business. The dream of developing an Orange Roughy fishery in Area 1 was a shared one. Even if Milan Barbarich was not present at the crucial time when the deal was done with Colin Bray, I find it inconceivable that Mr Tony Barbarich, as a man of business and from all accounts, of honour, would have kept such important information from his son and business partner. Mr Bray, who worked closely with both over many years, simply assumed that Milan Barbarich would have known.

[60] The Bray agreement was of course made in somewhat different circumstances. Mr Bray had been with the company for many years and had solicited the offer. It was made on condition that he remain with the company. But it was sought and made as an incentive, not a reward, and there was no compelling reason why it should not be repeated in the circumstances in which Milan Barbarich found himself in June 1994. I think he would have been influenced by the precedent set by his father, for whose business acumen he had the greatest respect.

[61] For the defendants, it was submitted that the conduct of the plaintiff at and following the June meetings told against the existence of any agreement. Mr Ingram submitted that it was odd that the plaintiff did not seek further information at the 8 June meeting as to what was expected of him and the process involved in proving the fishery. He argued that in the light of past experience, where he had been let down by a business partner, the plaintiff would not have taken Milan Barbarich on trust and would have required that the agreement be reduced to writing. He submitted further that if the agreement had been made, the plaintiff would have responded with a much greater degree of enthusiasm than he reportedly showed.

[62] The plaintiff’s conduct must of course be judged in the light of his personality and life experience. He is not an educated or sophisticated man of business. He left school at fifteen and has spent most of his life as a commercial fisherman. His few ventures into business have been failures. He is not an articulate man except, as Mr Spring pointed out, when he is talking about fishing. My impression tallied with Mr Sims’ description of him as a private man.

[63] Mr Barbarich, on the other hand, is university educated, highly experienced in business, forceful and loquacious. I think Mr Spring is right to say that the plaintiff would have been no match for him in a negotiation. Mr Barbarich was, moreover, the plaintiff’s employer.

[64] Having regard to these matters, I do not find it strange that the plaintiff did not press for more details of the arrangement or for it to be reduced to writing. He was asked in cross-examination why he had not required the agreement to be recorded. He said, “It was impossible really to talk to Milan”. He went on to explain that there was “a very strange relationship”.

[65] The personalities of the two and their respective positions would have discouraged self-assertion by the plaintiff. A written agreement would not have been in keeping with general practice in the industry. The plaintiff’s employment was on a handshake, although agreed to be covered by the Standard Auckland Share Fishermen’s agreement. I note that the Bray agreement with Tony Barbarich was also oral. It appears not to have occurred to Mr Bray to require that it be reduced to writing.

[66] It seems to me that the plaintiff was content to accept the offer as it was put to him in the knowledge that much remained to be done. I would not have expected great elation. It was only the first step along the journey.

[67] Mr Smith’s failure to broach the subject again during more than two further years of employment by Antons is more difficult to understand. It is surprising indeed that he did not say anything when the additional quota was issued to Antons in October 1995. At about the same time Mr Barbarich wrote a hard-hitting letter to him and the crew of the “Seamount Enterprise” criticising their performance and attitude. He also reminded them that their remuneration was on a share of catch basis. It may be no more than coincidence that the letter was written on the same day that Antons received notice in writing of the increase in quota. It might have been thought that the plaintiff would have sought reassurance at this time. An even more obvious opportunity to raise the subject occurred when the plaintiff had given notice and was asked to sign an acknowledgement of debt.

[68] I agree with Mr Ingram that the plaintiff offered no satisfactory explanation for his failure to address the issue over the remaining period of his employment, particularly when the opportunities I have referred to presented themselves. Were my findings as to credibility to turn on the plaintiff’s conduct at this time, I would have reached a different conclusion on the central issue. But the weight of evidence persuades me that the plaintiff’s conduct over this time reflected a pervasive sense of subservience to Milan Barbarich, amounting perhaps to a feeling of intimidation. To this I would add the possibility of personal doubts, later to be confirmed by others, that he could sheet home an oral agreement with Milan and the fact that over this period the plaintiff’s personal life was in turmoil.

[69] His failure to raise the issue when, in February 1997, he received a letter of demand for the debt of $25,000 is easier to understand if, as I believe to be the case, he had by this time received negative advice from Mr McKinnon, advice which reflected the widespread misconception of bush lawyers that an agreement which is not in writing is not enforceable. I am satisfied that he had given up hope of doing anything about his agreement with Milan Barbarich until, fortified by his alliance with Colin Bray, he obtained legal advice to the contrary.

[70] In reviewing the various factors which have led me to the view that an agreement was made between the plaintiff and Mr Barbarich on 8 June, I am conscious that I have not exhaustively canvassed all of the detailed arguments presented by counsel in their comprehensive closing submissions. I have, of course, had regard to all of the arguments urged on me but have confined myself to addressing those which I have judged to be of greatest relevance to the central issue.

Certainty of agreement

[71] Mr Ingram invited me to consider whether the terms of the agreement, if I found it to have been made, defined with sufficient certainty the obligations undertaken by the parties. In particular, he questioned whether the obligation on the plaintiff to “prove a commercial fishery” has the requisite degree of certainty.

[72] The principles on which the Court should act in determining whether an agreement is sufficiently certain to be enforced are well established. They were articulated in the following way by Richmond P in Attorney-General v Barker Brothers Limited [1976] 2 NZLR 495 at 498 et seq:

“(a) If it appears that the true intention of the parties was not to enter into a binding arrangement unless and until certain unsettled terms of their bargain were settled by actual agreement between them, then no contract can come into existence in the absence of such further agreement.

(b) If the court is satisfied that the real intention was to enter into an immediate and binding agreement then the court will do its best to give effect to that intention.

(c) Apparent lack of certainty will be cured if some means or standard can be found whereby that which has been left uncertain can be rendered certain. Instead of ‘means or standard’ one can adopt the terms ‘machinery or formula’.”

[73] On the facts as I have found them, I do not think it can be contended that the parties intended to reserve any matter for further agreement. I am satisfied that there was a real intention to enter into an immediate and binding agreement. In those circumstances the task of the Court is, as stated by Lord Wright in G. Scammell and Nephew Limited v Ouston [1941] AC 251 at 268, adopted by Richmond P in Attorney-General v Barker Brothers Limited at 498-499:

“. . . to do justice between the parties, and the court will do its best, if satisfied that there was an ascertainable and determinate intention to contract, to give effect to that intention, looking at the substance and not mere form. It will not be deterred by mere difficulties of interpretation. Difficulty is not synonymous with ambiguity so long as any definite meaning can be extracted. But the test of intention is to be found in the words used. If these words, considered however broadly and untechnically and with due regard to all the just implications, fail to evince any definite meaning on which the court can safely act, the court has no choice but to say that there is no contract. Such a position is not often found.”

[74] I consider the requirement to prove a commercial fishery, in the context in which it was used by the parties, has a clear and definite meaning. There is no ambiguity in the words “to prove” or in what is meant by a commercial fishery. The agreement itself provides the key determinant of what is understood by the latter term. The parties obviously contemplated that the issue of additional quota would be a prerequisite to the establishment of a commercial fishery in ORH1. Seen in this way, there is nothing uncertain about the terms. There is no obstacle to the Court acting on the plain words of the agreement. Its task is simply one of determining whether, as a matter of fact, a commercial fishery came into existence and, if it did, whether the plaintiff proved it.

[75] For completeness, I should add that I have not found it necessary to refer to the Court of Appeal’s decision in Electricity Corporation of New Zealand v Fletcher Challenge Energy (unreported, CA.132/00, 10 October 2001) which was issued on the penultimate day of the hearing and, understandably, was not referred to by counsel in final submissions. The judgments include a comprehensive discussion of the law in this area but do not depart in any relevant way from the principles relied on by counsel in argument.

Terms of agreement

[76] For the defendants, it was submitted that any agreement between the parties required the implication of a term that:

“(i) The Plaintiff would remain engaged by the First Defendant until completion by the Plaintiff of any exploratory programme required to establish the existence of any new sustainable ORH fishery; and

(ii) That exploratory programme was to result in the allocation of increase TACC in ORH1.”

It was submitted that the suggested term met the requirements for the implication of a term set out in BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) ALR 363 at 376 (PC), namely, that it was:

“(a) reasonable and equitable

(b) necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it

(d) capable of clear expression

(e) did not contradict any express term of the contract.”

See also Devonport Borough Council v Robbins [1979] 1 NZLR I at 23 (CA) per Cooke and Quilliam JJ.

[77] Mr Ingram submitted that the proposed term met all criteria and that, in particular, it was necessary to give business efficacy to the contract. He submitted that without the term the agreement was unclear as to what the plaintiff was required to do in order to prove a commercial fishery. He also submitted that it would be inequitable if the plaintiff were able to depart prior to the completion of any research and exploratory programme required to establish the existence of the new fishery.

[78] The observations I have already made in relation to the certainty issue will have foreshadowed my view that I do not see that proposed term is necessary to give the contract business efficacy. The precise means by which the plaintiff would carry out his side of the bargain did not need to be spelt out. His obligation was to prove a commercial fishery. It may be supposed that he would need to remain employed by Antons in order to do so. But that makes it an issue of fact to consider when determining whether he discharged his obligation. It does not necessitate the implication of a term to that effect.

[79] For substantially the same reason, I do not regard the suggested term as reasonable or equitable or so obvious as to go without saying.

Has the plaintiff fulfilled his obligations under the agreement?

[80] For the defendants, it was submitted that in order to establish the existence of a new sustainable fishery, the plaintiff was required to undertake the scientific trawl surveys of July and September 1994 and June 1995 and to complete the adaptive management programme (“AMP”) which commenced on 1 October 1995. Because he terminated his engagement with Antons before completing the AMP, it was submitted that he did not fulfil his obligations under the contract and has no entitlement to the percentage of quota claimed.

[81] I am unable to accept that proof of a commercial fishery under the contract required that the plaintiff participate in the completion of the AMP. As I have already observed, the contract itself provided the prerequisite for the establishment of a commercial fishery - the issue of additional quota. The issue of additional quota from 1 October 1995 prima facie confirmed the existence of a commercial fishery. The question is whether there is any reason why this outcome should be affected by the issue of quota being subject to an AMP.

[82] Mr Stuart Brodie, a policy analyst with the Ministry of Fisheries, called by the defence, explained the objective of AMP’s and the way they function. They were introduced in 1991 for use as a basis for varying TACC levels of fish stocks for which there is limited information on stock size. The essential elements of an AMP are:

(i) an industry proposal;

(ii) an evaluation of the proposal/fishery against specified criteria;

(iii) a new TACC increase (if the proposal is accepted) for an initial 5 years;

(iv) annual evaluation of performance of the fishery with the potential for the TACC increase to be reversed;

(v) final evaluation of the performance of the fishery after 5 years, with a decision then made as to the future management of the stock, either within or outside the AMP.

[83] The acceptance by the Minister of an AMP proposal accordingly results in the establishment of an ongoing evaluation process to ensure that any increase in catch levels is sustainable over the tenure of the programme. The objective is to be able to undertake a full stock assessment by the end of the initial five year period based on reliable information. A decision is then made either to remove the stock from the AMP or to retain the AMP for a further five year period. If the stock is removed, the TACC increase may remain or, if it is considered unsustainable, it may be reduced to its original level. If the decision is made to retain the stock under the AMP, it may be at the existing TACC or an increased level.

[84] The increase in TACC for ORH1 stock in 1995 followed an AMP application by quotaholders. It received a positive response from Ministry officials who recommended that the TACC for ORH1 be increased by 1,000 tonnes to be used exclusively in the Mercury-Colville Box under the provisions of the AMP proposed by the industry. The recommendation was accepted by the Minister. Consequent on the increase in the TACC for ORH1 the quota of ORH1 was increased from 190 tonnes to 1,190 tonnes. In terms of s 280E(1) of the Fisheries Act 1983, the Minister offered the additional quota on a proportionate basis to existing quotaholders. As a result, Antons’ quota of ORH1 increased from 126 tonnes to 663 tonnes.

[85] The AMP made possible the issue of quota before fish stocks had been ascertained to the level of certainty which would otherwise be required before a TACC level was established or increased. It also imposed obligations on stakeholders to research and monitor fish stocks and to report to the Ministry. It permitted a review of TACC at any time in the course of the programme as well as at its conclusion.

[86] Critically, however, the AMP did not limit the ability of quotaholders to exploit the fishery to the full extent of quota held. The issue of additional quota permitted Antons to catch in excess of 600 tonnes of fish in the Mercury-Colville Box in each of the years 1995/6 and 1996/7. Fish stocks and catches reduced dramatically after that, resulting in stakeholders agreeing to limit catches to 500 tonnes in the Mercury-Colville Box in 1998 and to a reduction to 800 tonnes overall in 2000. However, TACC for any given fish stock may be reduced at any time if there is evidence that anticipated yields cannot be sustained. The fact that this occurred under the AMP for ORH1 does not affect the conclusion that the issue of quota in 1995 was confirmation that a commercial fishery had been proven by the work carried out by Warwick Smith and his crew on the “Seamount Enterprise”.

[87] It follows that there was no obligation on the plaintiff to remain with Antons until the completion of the AMP. He had performed his side of the bargain by the time the increased quota was issued.

Have the defendants breached their obligations under the agreement?

[88] This issue arises from the third affirmative defence by which it is contended that the programme of exploratory fishing undertaken by the plaintiff did not result in any increase in quota.

[89] The argument in support of this limb of the defence proceeds in the following way:

(a) The increase of 1000 tonnes of TACC in ORH1 on 1 October 1995 was restricted to the Mercury/Colville Box to be used in conjunction with the 5 year Adaptive Management Programme.

(b) Following the evaluation of the Ministry of Fisheries under the 5 year Adaptive Management Programme the TACC for Orange Roughy within the Mercury/Colville Box was restricted to:

(i) in 2000-2001, 35 tonnes,

(ii) in 2001 - 2002, 30 tonnes.

(c) At the time that the Plaintiff was engaged by Antons as master of Seamount Enterprise, Antons held 126 tonnes of ORH1, all of which Antons was entitled to catch in the Mercury/Colville Box (or elsewhere in ORH1).

(d) As a consequence Antons has enjoyed no permanent increase in its ORH1 quota as a result of the activities of the Plaintiff.

[90] This submission relies on the argument which I have already rejected, namely that a fishing ground which is subject to a TACC and quota conditional on compliance with an AMP is not a commercial fishery. As I have already observed, an AMP makes no difference to the quotaholder’s right to fish to the limit of quota held. It carries the obligations I have referred to and the TACC is susceptible to review if it appears that fish stocks are declining. But the right to exploit the quota is unaffected. And, of course, the Minister has the right to review TACC and quota for any species regardless of whether an AMP is in operation.

[91] In my view, the plaintiff’s right under the contract to a share of quota arose when it was issued to Antons in 1995. Of course his entitlement is subject to the conditions on which it was issued. Mr Spring conceded that. So while he had the right to 10% of the quota available for the first two years, his entitlement will change as TACC and the conditions attached to the issue of quota changed.

[92] It is true that the conditions on which quota for ORH1 has been issued have (at least for the present) resulted in a reduction in the quantity which may be caught in the Mercury/Colville Box. The plaintiff’s rights will be affected accordingly. But it does not affect his contractual right to a share of whatever quota was issued consequent on the proof of a commercial fishery. That, as I have held, occurred in 1995 and was not conditional, as Mr Ingram attempted to argue, on a “permanent” increase in quota in the Mercury/Colville Box.

[93] Accordingly, I hold that the defendants have breached their obligations under the agreement by failing to transfer the plaintiff’s 10% entitlement to him.

What is the plaintiffs entitlement?

[94] The defendants contend that any share of quota to which the plaintiff is entitled is limited to the quota currently available to Antons to fish in the Mercury/Colville Box. The argument proceeds on the basis that the Mercury/Colville Box is the only recognised sustainable Orange Roughy fishery in Area 1 and that the plaintiff was not responsible for discovering stocks of Orange Roughy in any other areas of ORH1. The plaintiff’s entitlement is said, accordingly, to be limited to 10% of the 30 tonne quota for the Mercury/Colville Box, or 1.9895 tonnes.

[95] The argument is flawed in several respects. First, it assumes that quota is issued for the Mercury/Colville Box. It is not. The TACC is fixed for ORH1. That is the relevant fisheries area as defined in the Fisheries Act. The issue of quota is, however, subject to conditions which impose catch limits in each of four defined sub-areas. One of these is Area D in which the Mercury/Colville Box is located. For that area there is a 200 tonne annual limit overall and 75 tonne annual feature limits except for the Mercury/Colville Box which has a limit of 30 tonnes. There is no TACC or quota for the Mercury/Colville Box. There is a catch limit.

[96] The catch limit for the Mercury/Colville Box recognises the extent to which fish stocks in that area have declined since the large catches of 1995/96 and 1996/7. Those for other sea features are to ensure that populations are not depleted before there is sufficient information to assess yields. The overall catch limits for the sub-areas have been fixed so as to encourage exploratory fishing throughout Area 1.

[97] The Mercury/Colville Box is the only area of ORH1 to have proven fish stocks and to have been systematically exploited. In that sense, it may be the only recognised fishery, although to describe it as sustainable is questionable given the dramatic and continuing decline in catches.

[98] The exploratory fishing in the Mercury/Colville Box by the plaintiff in 1994/5 resulted in the increased TACC of ORH1 which led to more extensive exploration of Area 1. The evidence supports Dr Clark’s view that the plaintiff’s voyages on the “Seamount Enterprise” were instrumental in opening up ORH1 as a commercial fishery.

[99] It must be acknowledged that the exploratory fishing and research carried out by quotaholders since the plaintiff left Antons in 1996 will have contributed to the current TACC of ORH1 and it may be thought inequitable for the plaintiff to have a share in an asset which he has had no part in building or preserving since 1996. However, his interest in the quota is subject to the same incidents as attached to the issue of quota overall. He must assume the burdens as well as enjoy the benefits. At this stage I am not required to consider the terms on which relief is to be granted but, for that purpose, the costs associated with holding quota in ORH1 under the AMP will have to be taken into account.

[100] I conclude that the plaintiff’s entitlement is to 10% of the ORH1 quota in excess of 126 tonnes held by Antons from time to time since 1 October 1995.

Summary - answers to specific issues

[101] The answers to the specific issues I have been asked to consider are as follows:

[a] Did the plaintiff enter into an agreement with the first defendant?

Answer: Yes

[b] Did the agreement contain the requisite degree of certainty?

Answer: Yes

[c] What were the terms of the agreement?

Answer: If the plaintiff was able to prove a commercial Orange Roughy fishery in Area 1, he would be entitled to either:

[i] 10% of any additional Orange Roughy quota issued to the defendants for Area 1; or

[ii] A cash payment equivalent to 10% of the value of any such quota.

[d] Has the plaintiff fulfilled his obligations in terms of the agreement?

Answer: Yes

[e] Have the defendants breached their obligations under, or arising from, the agreement?

Answer: Yes

[f] Subject to any issue relating to the plaintiff’s entitlement to specific performance, what is the plaintiff’s entitlement?

Answer: 10% of the ORH1 quota in excess of 126 tonnes held by the defendants from time to time since 1 October 1995.

Future conduct of the proceeding

[102] A further hearing is necessary to determine the relief to which the plaintiff is entitled. The Registrar will arrange for a conference early in the New Year at which any directions necessary for the further hearing can be made.