Transpacific Standardbred Agency Pty Ltd v Westbay Seafoods (Aust) Pty Ltd & Ors [1995] FCA 26

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG120 of 1992 GENERAL DIVISION ) BETWEEN: TRANSPACIFIC STANDARDBRED AGENCY PTY LTD Applicant AND: WESTBAY SEAFOODS (AUST) PTY LTD Firstnamed Respondent AND: HAROLD FRANCIS LONIE Secondnamed Respondent AND: NATIONAL AUSTRALIA BANK LIMITED Thirdnamed Respondent AND: NATIONAL AUSTRALIA BANK LIMITED Cross-Claimant AND: TRANSPACIFIC STANDARDBRED AGENCY PTY LTD, GARY KEITH EWEN and COLLEEN CLARKE Cross-Respondents

CORAM: Jenkinson J. PLACE: Melbourne DATE: 7 February, 1995

REASONS FOR JUDGMENT

Trial of questions arising in a proceeding for breach of contract and contraventions of s.52 of the Trade Practices Act 1974. The first-named respondent ("Westbay") sold to the applicant ("Transpacific") a fishing vessel called "Sovereign". At material times the second-named respondent Harold Francis Lonie was a director of Westbay who conducted those of Westbay's affairs which concerned Sovereign. Gary Keith Ewen was at material times a director or the secretary of Transpacific and on Transpacific's behalf arranged the purchase and managed the vessel. The dispute between the two companies has its origin in doubt entertained by the Maritime Services Board of New South Wales concerning the stability of Sovereign. The Commercial Vessels Act 1979 (N.S.W.) applies to a vessel used for a commercial purpose. At material times Sovereign was used, and the owners intended that it would be used, for commercial fishing in places which included New South Wales waters. Section 8 of the Commercial Vessels Act 1979 at relevant times made liable to conviction of an offence the owner and the master of such a vessel which is used in those waters unless - "(a)a permit relating to the vessel is in force; and (b) the vessel is used in accordance with the authority conferred by the permit." The permit contemplated by s.8 is one which the Act authorised the Maritime Services Board of New South Wales ("the Board") to issue. Sovereign, having been damaged by fire some five years after it was built, and having been modified during the consequent refitting, was the subject of a fresh permit (No. 3447) issued by the Board. The permit is expressed to have an "issue date" : 29 September 1987. But Appendix B of the permit is expressed to have the issue date 11 November 1987, and Appendix A 9 October 1987. The permit is expressed to authorise the vessel to operate within defined waters, subject to, inter alia, "any other conditions that are applicable as set out in Appendix `A'". Sub-section 6(3) requires that there be specified in a vessel permit "the terms upon which, and the conditions and restrictions subject to which, the permit was issued". Section 7 provides: "A vessel permit, while it is in force, authorises the use of the vessel to which it relates in prescribed waters of a class or classes specified in the permit subject to compliance with the terms, conditions and restrictions upon and subject to which the permit was issued." Condition (4) in Appendix A reads: "Adherence to the conditions of loading in the approved stability book."