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  • Unreported Judgment

Pankhurst v Damata

 

[2008] QSC 28

 

 

SUPREME COURT OF QUEENSLAND

 

CIVIL JURISDICTION

 

JONES J

 

 

Claim No 11850 of 2007

 

JOSEPHINE PANKHURST

Applicant (Plaintiff)

and

 

ANTONIO MANUEL DAMATA

and

COMMONWEALTH OF AUSTRALIA

Respondent (Defendant)

 

Third Party Respondent

 

 

CAIRNS 

..DATE 19/02/2008

 

JUDGMENT


HIS HONOUR:  By her amended application, the plaintiff seeks a freezing order requiring the third party respondent to pay into Court one half of the several amounts it intends to pay to the defendant for his surrender of certain Torres Strait fishing licences held in his name. 

 

The third party respondent intends to make payments totalling $248,976 to the defendant on the 20th of February 2008, unless otherwise directed by this Court.  The plaintiff, by her amended statement of claims seeks, inter alia, a declaration that the defendant holds one half interest in the said fishing licences on trust for her on the grounds that those licences were part of a "bundle" of licences in which she purchased a half interest on 15 April 2003.  The defendant as at that date held the following licences:  QFV02093A and QFV03663C, entitling him to fish commercially for Barramundi in Queensland waters.  These will be referred to as the Queensland licences.

 

As well, he held TVH01563F, TVH01564D and TPC00204F, entitling him to fish commercially within the Torres Strait Spanish Mackerel Fishery and within the Reef Line Fishery.  I will refer to these latter licences as the Torres Strait licences.

 

On or about the 14th of November 2007 the defendant agreed to surrender the three Torres Strait licences effective from the 31st of January 2008.  This was in accordance with a licence buy-back program undertaken by the third party respondent, wherein some $10.5 million was to be divided amongst licence holders.  See affidavit of Anne English, Exhibit C, sworn

21/12/2007. 

 

The issues between the parties is what licences were intended to be sold pursuant to the agreement of the 15th or 16th of April 2003.  That agreement was in writing and prepared by a firm of solicitors, though the circumstances surrounding its agreement are in dispute.  Each of the parties acknowledge that it was however, signed in the presence of a witness.

 

The opening paragraph of the agreement reads:  "By this agreement Mrs Pankhurst leases the fishing licences numbered QFV02093A and QFV03663C from Mr Damata and agrees to purchase a half share in those fishing licences."  The agreement then records the details of those two transactions;  the lease arrangements set out in clauses 2 and 3 and the purchase of the half interest set out in clauses 8 and 9.The price for the half interest in those two stated licences is $42,500, payable in weekly instalments in the sum of between $100 to $500 until the full price is paid.

 

Significantly, the defendant was to remain the owner of the licences until the purchase price had been paid in full.  That stage had not been reached at the time of the commencement of these proceedings.

 

The plaintiff used the licences as leased to allow her son, Darren Pankhurst, to fish commercially.  He used his own vessel, the "C-PIG" for this purpose.  The defendant and Darren Pankhurst attended to the amendment of the fishing licences to show this vessel as the authorised vessel for the purpose of the Torres Strait licences.  (See Exhibit DP5 and DP6 to the affidavit of Darren Pankhurst, sworn on the 14th February 2008).  This change was noted on licences issued by the Torres Strait Protected Zone Joint Authority which controlled the fisheries in the Torres Strait.  (See Exhibits DP1 and DP2 with respect to the 2004 season and Exhibit DP3 with respect to the 2006 season).

 

Despite these renewals and authorities relevant to the Torres Strait Fishery, the plaintiff and Darren Pankhurst never in fact, fished commercially in those waters. 

 

The issue of what was sold pursuant to the agreement did emerge relatively early.  The plaintiff's explanation for the fact that only the Queensland licences were mentioned in the agreement is that they were bundled with the Torres Strait licences and there was at that time a policy that licences so bundled could not be split.  This seems to have been an industry practice as explained in the affidavit of Anne English, sworn on 15 February 2008.  It does not appear to have the force of law and in any event, it seems clear that since 1999 the only agency empowered to issue and to deal with Torres Strait licences was the Torres Strait Protected Zone Joint Authority which applies Commonwealth law. 

 

Ms English expressed an opinion as to how the unbundling of licences has occurred since 2004, by means of declaring some licences to have a "no boat" status which allows a licensee to hold a licence, even though there is no fishing activity being undertaken under it.  This was the status given to the subject Torres Strait licences for the purposes of their surrender. 

 

Concern about whether the agreement, by referring only to the Queensland licences, also included the Torres Strait licences was raised early in the year 2004.  The plaintiff sought to have the agreement rectified and amended in terms of a draft deed which was presented to the defendant in June 2004.  (See Exhibit ADM1 to the affidavit of Antonio Damata, sworn

5 February 2008. 


The approach to have the agreement rectified was rejected by the defendant, but no action was taken by the plaintiff either to have the agreement rectified by the Court or to terminate the contract.  The plaintiff apparently has continued to pay the instalments of purchase price, and lease payments, as well as the licence renewal fees. 

 

Some time prior to 2006 moves were afoot within the Commonwealth Government to achieve the surrender of Torres Strait licences on just terms.  Discussions were held with various fishing industry bodies and organisations concerned with the welfare of indigenous Torres Strait Islanders. 

 

On 27 February 2006 the defendant called the plaintiff to say he no longer wanted the plaintiff to be involved in the use of those licences.  He purported to terminate the agreement and forwarded a cheque for $2,000 as a refund of instalments.  He also retained the registration cards for the Queensland fishing licenses which were required to be kept on the vessel.  The plaintiff refused to accept that repudiation and her attention then turned to securing undertakings that licences would not be dealt with adversely to the plaintiff's interest.  The defendant gave no such undertakings and on the 19th of December 2007 he agreed with the Commonwealth to surrender the licences.

 

These proceedings, and the application for a freezing order, were commenced on 21 December 2007.  The order is sought pursuant to rule 260A and the allied rules under the Uniform Civil Procedure Rules.  It is in the nature of a Mareva order.  The general principle which informs the exercise of the power to grant this type of relief is that the Court may make such orders as are needed to ensure the effective exercise of the jurisdiction involved in the proceeding.  See Cardile v. LED Builders Pty Ltd [1999] 189 CLR 380 at p. 401. 

 

At the heart of the plaintiff's argument is that without the order its attempt to litigate the relief sought will be defeated or frustrated because the defendant lives, or has since 2003 lived overseas; that he has no assets in Australia; and that payment to him of the surrender compensation to part of which the plaintiff lays claim will defeat recovery by her.  As to this last point the defendant has sworn that in October 2007 he returned to Australia from the Philippines where he had lived since 2002.  He is in employment and living with his sister and her family in Sydney.  He proposed to continue to reside in Australia.  He has only minor assets, but included amongst them of course is his half interest in the Queensland licences. 

 

To succeed in this application the plaintiff must show that she has an arguable case and that the balance of convenience favours the making of the order.  The amended statement of claim identifies the plaintiff's claims as being for

 

(1)  damages for breach of agreement;

(2)  rectification of the written agreement;

(3)an injunction restraining the defendant from breach of the agreement;

(4)a declaration that the defendant holds one half of the rights of the surrender proceeds on trust for the plaintiff.

 

The first two of these grounds require the plaintiff to establish that the terms of the agreement identifying the subject matter of the sale as expressed was the result of a common mistake.  The plaintiff relies on the "no split" policy on licences and other conduct to found her argument that there was a common intention for the Torres Strait licences to be included in the sale.  The defendant expressly denies that there was ever such an intention.  There is also the lack of use of the Torres Strait licences by the defendant to this date. 

 

Other remedies sought by the plaintiff would only flow if the contract is rectified.  The plaintiff argues in those circumstances for an equitable lien over the Torres Strait licence and hence to the compensation payable on their surrender.  Such a lien, if it could be shown to exist, would extend only to the money paid by way of instalments under the contract.  The instalments so far paid related, on the plaintiff's case, also to the Queensland licences, and there is no evidence before me apportioning purchase price between the various licences. 

 

The plaintiff's case, whilst undoubtedly arguable, is one which is not without difficulty.  On present material, I would not regard it as a strong case.  Of significance also is the delay instituting proceedings for rectification when at least by the year 2004 it was clear that this was an important issue between the parties. 

 

The defendant is prima facie entitled to be paid by the Commonwealth of Australia for compensation for licences held in his name.  The parties accept that the Court's jurisdiction does include power to make an order against the third party respondent should such an order be indicated.  However, I have come to the view that such an order should not be made. 

 

The defendant is currently residing in Australia without, he swears, any intention of departing.  His familial ties are in Australia and he has some assets here including his half interest in the Queensland licences.  He has financial needs which he has a right to expect can be met by part of the proceeds of the compensation claim. 

 

As was observed by the Court of Appeal in New South Wales in Frigo v. Culhaci (unreported), and referred to in Cadile (supra), a Mareva order is a drastic remedy which should not be granted lightly. 

 

I have had regard to the discretionary considerations referred to in Cadile.  In this case the delay on the part of the plaintiff in pursuing her remedy is of significance.  Had steps been taken expeditiously for the rights of the party to have been determined before the licence surrender became an issue the case may not have had the significant it has now taken on. 

 

In all the circumstances, having regard particularly to the needs of the defendant and the fact that he is residing in Australia without any intention of leaving or moving his assets, in the exercise of my discretion I refuse the application.  I order that the application be dismissed.  I order that the plaintiff pay the defendant's costs of and incidental to the application to be assessed on the standard basis. 

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Editorial Notes

  • Published Case Name:

    Pankhurst v Damata & Anor

  • Shortened Case Name:

    Pankhurst v Damata

  • MNC:

    [2008] QSC 28

  • Court:

    QSC

  • Judge(s):

    Jones J

  • Date:

    19 Feb 2008

Litigation History

No Litigation History

Appeal Status

No Status