Jamif Pty Ltd v Grant Torrens International Marine Pty Ltd
[2006] QSC 229
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- Unreported Judgment
- Jamif Pty Ltd v Grant Torrens International Marine Pty Ltd[2006] QSC 229
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Jamif Pty Ltd v Grant Torrens International Marine Pty Ltd[2006] QSC 229
Jamif Pty Ltd v Grant Torrens International Marine Pty Ltd[2006] QSC 229
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
DELIVERED ON: | 26 June 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 June 2006 |
JUDGE: | Wilson J |
ORDER: | 1.That the plaintiff provide the second defendant with a list of documents and copies of documents in accordance with rules 211 and 214 of the UCPR by 4 pm on 27 June 2006. 2.That the plaintiff provide the second defendant with copies of all maintenance records and invoices for any work completed on the vessel since it was purchased in late September 2003 by 4pm on 27 June 2006. 3.That the plaintiff make the vessel available for preliminary examination by the second defendant’s expert, Oceanic Yacht Design, its servants or agents, within five business days of the provision of the documents referred to in paragraphs 1 and 2. 4.That upon the plaintiff undertaking to preserve the vessel in its current state, including undertaking not by itself, it servants or agents, to remove, replace, modify or otherwise alter the engines of the vessel until further order of the Court, the second defendant be released from the undertaking given to Justice Muir on 23 June 2006. 5.That the parties confer with a view to reaching agreement on the joint appointment of an expert to be the sole expert to give evidence on matters on which he or she is engaged to report. 6.That the application be adjourned to Wednesday 5 July 2006. 7.That there be liberty to apply. 8.That costs be reserved. |
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – OTHER MATTERS BEFORE TRIAL – where the parties desire expert evidence before amendment of the pleadings – what directions are appropriate Uniform Civil Procedure Rules 1999 (Qld) r 423, r 429 Practice Direction (Qld) 2/2005 |
COUNSEL: | A L Wheatley for the applicant/second defendant M J Hocking for the respondent/plaintiff |
SOLICITORS: | Clayton Utz for the applicant/second defendant Home Wilkinson Lowry for the respondent/plaintiff |
[1] Wilson J: This proceeding was commenced by claim and statement of claim filed on 23 November 2005.
[2] In it the plaintiff claims damages for breach of contract, alternatively damages for misleading and deceptive conduct in breach of section 52 of the Trade Practices Act, alternatively damages for negligence.
[3] The claim arises out of the plaintiff's acquisition of a motor boat from the second defendant pursuant to a contract dated 3 October 2003. The vessel was described as "a 56-foot Cresta Flybridge Cruiser motor boat named 'Champagne Lady' (registration no. NA000Q)". The purchase price was $710,000.
[4] The first defendant was the motor yacht brokerage agent and the second defendant was the vendor.
[5] Dealing with the claim for breach of contract, the plaintiff alleges in paragraphs 5 and 6 of the statement of claim as follows:
"5.The following were express terms of the Contract:
(a)-------
(b)The Cruiser would be fitted with dual Detroit 8V92TA Engines, rated to 735 horsepower;
(c)The Cruiser would have a maximum speed of 22 knots; and
(d)The Cruiser would have a cruising speed of 15 knots.
6. In breach of the terms of the Contract:
(a)The engines fitted to the Cruiser were rated to 650 horsepower, not 735 horsepower;
(b)The Cruiser was incapable of a maximum speed of 22 knots; and
(c)The Cruiser was incapable of a cruising speed of 15 knots."
[6] The claims for breach of section 52 of the Trade Practices Act and for negligence relate to representations as to the horsepower rating, maximum speed and cruising speed of the vessel.
[7] On 23 June 2006 an application came before Muir J. He made the following orders:
"1.On the Second Defendant's usual undertaking as to damages, the Plaintiff, its servants or agents are restrained from performing any work to remove, replace, modify or otherwise alter the engines in the 56 foot Cresta Flybridge Cruiser motor boat named 'Champagne Lady' (registration no. NA000Q), known in the proceedings as the 'Cruiser' until 5 p.m. on Monday 26 June 2006 or further order of the Court.
2.Costs reserved."
[8] The present application is one by the second defendant against the plaintiff for orders relating to amendment of the pleadings, disclosure, preliminary examination of the vessel by the defendants' experts, a preservation order and release from the undertaking given to Muir J.
[9] The vessel is presently moored at the Gold Coast Marina. The plaintiff says that it is unserviceable and it wants to be able to remove the engines and replace them. It complains that a preservation order would prevent this and that in the meantime it would continue to incur mooring fees.
[10] In a letter dated 7 June 2006 the plaintiff's solicitors said to the second defendant's solicitors,
"Our client has engaged two experts to examine these engines. These experts are Joe Akacich and Paul Dremel of MTU Detroit Diesel Australia Pty Ltd. We understand that the solicitors for Grant Torrens International Marine Pty Ltd have also engaged an expert that has examined the cruiser.
We are instructed that all of these experts will agree that the engines are actually rated at between 450 to 550 horsepower. We are also instructed that all of the experts will agree that while the engines fitted may have been capable of attaining speeds of 18 knots cruising speed and 22 knots maximum speed, that the speed could not be maintained because the engines were not powerful enough."
[11] In a further letter dated 15 June 2006 they said that they were instructed,
"●While a reference of the serial number and model number for each engine to the manufacturer will suggest that the engines have a performance capacity of 735bhp, this is so (as you will see from the attached documentation) provided that 145mm injectors are fitted;
●Mr Dremel's inspection of the engines disclosed that 145mm injectors are not fitted but rather 9225 injectors are fitted;
●Mr Akacich has expressed the view that it is not possible to repair the engines (even if those repairs include the fitting of the correct injector equipment) in such a way as to bring the top speed of the cruiser up to 22 knots and the cruising speed of the cruiser up to 18 knots, without a risk of repeated engine failure (given that the engines are apparently 15 years old); and
●Mr Akacich's view is that the only certain way to ensure that the cruiser is capable of doing the stipulated speeds is for the engines to be replaced with new engines."
[12] The second defendant's attitude is that the statement of claim should be amended to reflect these matters before the vessel is examined by its expert. In response the solicitor for the plaintiff told the Court that his client was not in a position to amend because it does not have the actual brake horsepower rating available without an examination by an expert.
[13] At first blush this seemed an odd response in light of the correspondence referring to examinations by Mr Akacich and Mr Dremel. However, the Court was informed that those gentlemen had not yet produced reports.
[14] Of course, if they had produced reports on which the plaintiff intended relying, it would have been bound already to have disclosed them under rule 429 of the UCPR.
[15] The second defendant had proposed engaging an expert, Mr Behan, to examine the vessel but it has emerged that there are matters beyond Mr Behan's expertise. It now wants to engage Mr Stewart Ballantyne of Oceanic Yacht Design at Runaway Bay to report upon the horsepower rating of the engines, the vessel's speed, its value and issues relating to the engines, including the type of engines, injectors and repairs.
[16] The second defendant says that it needs disclosure of various documents listed in a letter its solicitors wrote to the plaintiff's solicitors on 29 May 2006, namely:
"(a)all logs books for the cruiser;
(b)all maintenance records and invoices for any work completed on the cruiser since it was purchased in late September 2003;
(c)all oil usage and machinery oil sample analysis reports;
(d)all engine dynamometer testing and reports in respect of the cruiser since purchase in late September 2003 (if any);
(e)all insurance claims (and associated documents) made since late September 2003 relating to machinery propulsion units or the hull (below water line) of the cruiser;
(f)incident reports made to Marine Safety Queensland."
[17] Although the plaintiff has provided disclosure to the first defendant, it has not yet provided disclosure to the second defendant. This seems to have been a matter of oversight. The plaintiff's solicitor informed the Court that a list of documents could be provided today and the documents themselves or copies thereof provided tomorrow.
[18] As for the documents listed in paragraph 5 of the letter of 29 May 2006, the plaintiff's solicitor informed the Court that only the documents described in paragraph (b) exist and that copies thereof will be provided tomorrow.
[19] There is an issue as to a preliminary inspection of the vessel by the second defendant's expert. Ultimately, it was agreed that this should take place within five business days of the provision of documents in accordance with the disclosure obligation in chapter 7 of the UCPR and the provision of the maintenance records and invoices referred to in subparagraph (b) of paragraph 5 of the letter of 29 May 2006.
[20] There was then the issue of experts or a jointly appointed expert to provide evidence at trial and ultimately, the parties agreed to confer about the possibility of the joint appointment of an expert. It is timely to draw attention to the relevant provisions of the UCPR.
[21] Part 5 of Chapter 11 deals with expert evidence. In rule 423, the main purposes of the part are stated as follows:
"(a) [to] declare the duty of an expert witness in relation to the court and the parties; and
(b)[to] ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue in a proceeding by a single expert agreed to by the parties or appointed by the court; and
(c)[to] avoid unnecessary costs associated with the parties retaining different experts; and
(d)[to] allow, if necessary to ensure a fair trial of a proceeding, for more than 1 expert to give evidence on an issue in the proceeding. "
[22] That rule came into effect on 2 July 2004. There is a relevant Practice Direction, 2 of 2005, which came into effect on 12 April 2005. Relevantly, it provides as follows:
"2.In any proceeding, or intended proceeding, where expert evidence will or may be called, early consideration must be given to the requirements of the Rules, particularly as to the appointment of an expert to be the only expert witness on a particular substantial issue in the proceeding.
…
4.Either before commencement of any such proceeding, or soon afterwards, a party intending to call expert evidence on a substantial issue should raise with all other parties the prospect of their jointly appointing an expert, who would become the only expert to give evidence on that issue (unless the Court otherwise ordered) (rr 429G(1), 429H(6)).
5.As soon as it is apparent to a party that expert evidence on a substantial issue in a proceeding will be called at the trial or hearing, that party must file an application for directions. On the hearing of that application, that party must inform the Court of steps taken or to be taken to conform with these Rules."
[23] It is with a view to implementing the relevant provisions of Part 5 of Chapter 11 that the parties are to confer. It should be noted that if an expert is jointly appointed by the parties or if one is appointed by the Court, he or she will be the only expert on the issues on which he or she is instructed to report unless the Court orders otherwise. In either case, it will be necessary to identify the issues in the proceeding the expert evidence may help resolve, the identity of the expert, a timeframe for the reporting and liability for the expert's fees. If the expert is to be jointly appointed, there needs to be an agreed statement of facts in accordance with rule 429H.
[24] The orders that I make are as follows:
1.That the plaintiff provide the second defendant with a list of documents and copies of documents in accordance with rules 211 and 214 of the UCPR by 4 p.m. on 27 June 2006.
2.That the plaintiff provide the second defendant with copies of all maintenance records and invoices for any work completed on the vessel since it was purchased in late September 2003 by 4 p.m. on 27 June 2006.
3.That the plaintiff make the vessel available for preliminary examination by the second defendant's expert, Oceanic Yacht Design, its servants or agents, within five business days of the provision of the documents referred to in paragraphs 1 and 2.
4.That upon the plaintiff undertaking to preserve the vessel in its current state, including undertaking not by itself, its servants or agents, to remove, replace, modify or otherwise alter the engines of the vessel until further order of the Court, the second defendant be released from the undertaking given to Justice Muir on 23 June 2006.
5.That the parties confer with a view to reaching agreement on the joint appointment of an expert to be the sole expert to give evidence on matters on which he or she is engaged to report.
6.That the application be adjourned to Wednesday 5 July 2006.
7.That there be liberty to apply.
8.That costs be reserved