Stingray Boats v Denmeade [2003] FCA 83

FEDERAL COURT OF AUSTRALIA

Stingray Boats v Denmeade [2003] FCA 83 ADMIRALTY – claim in respect of construction of a ship CONTRACT - whether there was agreement as to amount owing for "extras" – whether promise to pay given under duress Admiralty Act 1988 (Cth) s 4(3)(n) STINGRAY BOATS (a firm) v PHILIP DENMEADE (The Owner of the 12m Aluminium Ship Identification Number 25230) No Q 159 of 2002 SPENDER J BRISBANE 14 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY IN ADMIRALTY No Q 159 OF 2002

BETWEEN: STINGRAY BOATS (a firm)

PLAINTIFF

AND: PHILIP DENMEADE (The Owner of the 12m Aluminium Ship Identification Number 25230)

DEFENDANT

JUDGE: SPENDER J

DATE OF ORDER: 14 FEBRUARY 2003

WHERE MADE: BRISBANE

THE COURT ORDERS: 1. Judgment for the plaintiff against the defendant in the sum of $21,500. 2. The defendant is to pay the plaintiff's costs, to be taxed if not agreed. 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 REGISTRY IN ADMIRALTY No Q 159 OF 2002

BETWEEN: STINGRAY BOATS (a firm)

PLAINTIFF

AND: PHILIP DENMEADE (The Owner of the 12m Aluminium Ship Identification Number 25230)

DEFENDANT

JUDGE: SPENDER J

DATE: 14 FEBRUARY 2003

PLACE: BRISBANE

REASONS FOR JUDGMENT

Introduction 1 This action is a general maritime claim within s 4(3)(n) of the Admiralty Act 1988 (Cth) ("the Act") being a claim in respect of the construction of a ship. 2 The plaintiff is Stingray Boats (a firm) which at the relevant time carried on business in Brisbane as a builder of small aluminium ships. By a writ filed on 10 October 2002, the plaintiff claimed the sum of $20,500 as "the balance due to the plaintiff for the construction of the ship". The statement of claim filed 10 October 2002 asserts that between 17 April and 10 September 2002 the plaintiff assembled and built, at its business premises in Brisbane, from plans drawn by Stephen & Gravlev Pty Ltd, an aluminium single hull vessel that was 12 metres in length, powered by three 225 hp Yamaha outboard engines, registered number 2523Q ("the ship"). The statement of claim alleges further that the plaintiff's part in the construction of the ship was terminated on 10 September 2002 when the ship was taken from the plaintiff's premises by the defendant. 3 The particulars of the $20,500 claimed in the statement of claim allege a contract price, including GST, of $79,200, acknowledges moneys totalling $73,000 as having been paid, and claims extras: "comprising bilge system, supply and fit front and rear door, aft toilet house and storeroom, console, canopy frame, rails, rear engine pod, dive ladders, bollards, front and rear anchor lockers, and fuel venting system" of $13,000 plus GST on that sum of $1,300, leaving the balance unpaid at $20,500. 4 Mr Philip Denmeade ("the defendant") filed a defence on 6 December 2002. The defence was obviously filed by Mr Denmeade personally. In it the defendant claims: "The plaintiff did not install the three motors. He did not finish constructing the boat." The defendant claims that: "a. By contract dated 15 March, 2002 the plaintiff agreed to construct the boat as designed by Stephen & Gravlev, including all superstructure fabrication for $79,200. b. It was to meet 1C survey standard. c. Items including seating were designed by Stephen & Gravlev but not built." 5 The defendant alleges that he did not terminate the plaintiff's part in the construction of the ship as the statement of claim alleges, but claims that the boat was moved for painting as planned with the plaintiff, and that the plaintiff terminated the contract on 11 September 2002, refusing to complete the construction. The defendant pleads, in par 6 of his defence: "6. The plaintiff used economic duress against the defendant on 9 September 2002 to force acceptance of an additional charge of $13,000. PARTICULARS: a. The plaintiff refused to release the vessel unless the defendant agreed to a higher contract sum for work already done. This was without any notice with the defendant under pressure. 7. No amount is now due under the contract and it should be voided. 8. The plaintiff, in consequence, is not entitled to the relief sought." The defence continues: "COUNTERCLAIM: 9. The plaintiff delayed construction of the boat. 10. The plaintiff did not finish the contract. 11. In consequence the defendant has suffered loss. …" 6 In a document called "AMENDED REPLY AND DEFENCE TO CROSS-CLAIM" filed 9 December 2002, amongst other things the plaintiff says in par 4C: "… it is, by reason of the conduct of the defendant, entitled to recover from the defendant the sum of $34,273.40 in place of the sums sought in paragraph 4 of the statement of claim." The particulars of that substituted claim are: "Particulars Construction contract – excludes following expenses which were at additional owner costs: - Computer cut kit - Surveyor and all survey costs - All metal folding and rolling costs - Engines and jet units Contract sum (net of GST) 72,000.00 Engines/jet/fuel and filter system: 3,600.00 Installation (net of GST) – 2 x sides @ $1800 per side ________ 75,600.00 GST on above 7,560.00 TOTAL for contract 83,160.00 Supply of 'Kit' (GST inclusive) 40,500.00 Surveyor and survey costs incurred for owner (all Net of GST) - Bilge system installation 2,250.00 - Valves and manifolds for bilge system 250.00 - Installation of required rails 1,485.00 - Materials for rail 275.00 - Fuel vent installation 180.00 4,440.00 GST on above 444.00 TOTAL for surveyor and survey costs 4,884.00 Metal folding and rolling costs incurred for owner (GST inclusive) 5,296.50 Extras to 'kit' – supplied at owner request (all net of GST) - Console construction labour costs 675.00 - Console materials 295.00 - Canopy frame construction labour cost 1,440.00 - Canopy frame materials 435.00 - Dive ladder construction labour cost 1,125.00 - Dive ladder materials 130.00 - Bollards installation labour cost 135.00 - Bollards materials 25.00 - Front (2) and rear (1) anchor locker installation labour cost 1,575.00 - Anchor locker materials 870.00 - Front and rear door installation labour costs 2,790.00 - Front and rear door materials 585.00 - Aft toilet house and door installation labour costs 3,240.00 - Aft toilet house and door installation materials 955.00 - Aft storeroom house and door installation labour costs 3,240.00 - Aft storeroom house materials 955.00 - Targa bar installation labour costs 270.00 - Targa bar materials costs 95.00 18,835.00 GST on above 1,883.50 TOTAL for extras 20,718.50 Contract variations at owner request (all net of GST) - Change engine installation to triple outboard pod - alloy costs 1,520.00 - Labour – pod construction 2,340.00 3,860.00 GST on above 386.00 TOTAL for variations 4,246.00 Total due 158,805.00 Less – Gross payments received 184,531.60 Adjustment for amount rebated to Customer for paint and motors 60,000 124,531.60 Balance outstanding $34,273.40" _________ 7 8 The "AMENDED REPLY AND DEFENCE TO CROSS-CLAIM" continues: "5. Further, and in the alternative: a. the plaintiff has performed the work and supplied the goods to the defendant as particularised in paragraph 4c. herein; b. the defendant in each case particularised requested the goods to be supplied and the work to be performed; c. the defendant freely accepted the goods supplied and the work performed by taking possession of the vessel on 10 September 2002; d. the defendant has failed to pay the plaintiff for the amounts outstanding pertaining to the work performed and the goods supplied; and e. as a consequence, the defendant is unjustly enriched; and f. the defendants enrichment has occurred at the expense of the plaintiff."