New South Wales Supreme Court CITATION : Bartie v Manly Boatshed [2003] NSWSC 443 HEARING DATE(S) : 19 May 2003 JUDGMENT DATE : 27 May 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. CATCHWORDS : Appeal from Local Court - no question of principle. LEGISLATION CITED : N/A CASES CITED : N/A Peter Bartie (Plaintiff) PARTIES : v Manly Boatshed Pty Limited (Defendant) FILE NUMBER(S) : SC 13172 of 2002 COUNSEL : Mr J Gruzman (Plaintiff) Mr M Barko (Defendant) SOLICITORS : Beston Macken McManis (Plaintiff) McMahons National Lawyers (Defendant) LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : 9106 of 1999 Local Court Downing Centre LOWER COURT B Lulham LCM JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Tuesday 27 May 2003 13172 of 2002 Peter Bartie v Manly Boatshed Pty Limited JUDGMENT 1 MASTER: The dispute between these parties has already had a long history. The saga now returns to this Court by way of appeal for a second time. The grounds of appeal set forth in the Amended Summons are numerous. Fortunately, but a few were pressed in this appeal. Many were directed to questions of fact. 2 The plaintiff was the owner of a yacht which was moored in Little Manly Cove. This has been said to be the roughest bay in the harbour. The defendant carried on a business which involved inter alia the renting and servicing of moorings and the servicing of boats. It is not in dispute that the defendant had expertise in these areas. 3 Since 1989, the plaintiff had leased a mooring from the defendant. The defendant charged a fee for the renting and the servicing of the mooring. From time to time, it performed service on the yacht. It performed service in respect of both the mooring and the yacht in about May 1998. 4 In August 1998, following storm activity, the yacht broke free of its mooring and was washed onto rocks. About two weeks later, the plaintiff became aware of damage to his yacht (after being contacted by the Water Police and being advised that it was in danger of sinking). It was considered to be a "write off". 5 The plaintiff commenced proceedings in the Local Court. A claim for damages founded on both breach of contract and negligence was propounded. 6 The matter was heard by Mr Lulham LCM. The hearing occupied about three days. Judgment was delivered on 13 June 2001. The learned Magistrate found in favour of the defendant. 7 On behalf of the plaintiff, evidence was given by the plaintiff himself, Mr Buchan (who has been described as a companion of the plaintiff) and an expert (Captain Lambert). 8 On behalf of the defendant evidence was provided by Mr Treharne (who was said to be the proprietor of the defendant), Mr Strong (an employee of the defendant) and an expert (Mr Toghill). 9 Save for the experts, the witnesses were cross-examined. In the case of the experts, there was agreement that the parties would both rely on the respective witness statements only. 10 In reaching the decision, the learned Magistrate made findings of credit. Generally speaking, he preferred the evidence given by witnesses for the defendant (including that of its expert). There was evidence given by the plaintiff himself which was not accepted. 11 An appeal was brought to this Court. It was heard by Dunford J. It appears that at first Dunford J was disposed to dismiss the appeal. He saw the submissions of the plaintiff as an attempt to canvass the findings of fact made by the learned Magistrate. It appears that subsequently on reflection he became concerned that there was evidence capable of supporting a conclusion that due care and skill may not have been used notwithstanding that inter alia a standard procedure had been followed. This led him to relist the matter for further argument and an allowing of the appeal. However, it appears that it was allowed only on a limited basis. 12 The judgment of his Honour contains the following:- "23 Having found against the plaintiff on the alleged express agreement to use the Carbineer snap clip, his Worship went on, at page 5 of his judgment, to talk of the policy and practice of the defendant that the boat was to be left as found, but he made no finding as to whether there was any implied agreement to the effect that it was to be refixed as previously, as opposed to an implied agreement that it was to be refixed with due care and skill nor whether the duty imposed by the Common Law to take reasonable care was overridden by the terms of the contract between them, as it could have been: see Astley v Austrust Limited [1999 HCA 6, 197 CLR at 1 paras [46] to [47]. If he considered these issues, he failed to mention them in his judgment or give his reasons for disregarding them. ……………………………………………………………………. 27 The relevant issues having not been addressed, and the necessary and the relevant findings of fact not having been made, I am satisfied that the magistrate's judgment is erroneous in point of law. …………………………………………………………………….. 29 However, if the claim for breach of an implied term to exercise due care and diligence, or the tort of negligence, in the sense of failing to take reasonable care, are established, it will still be necessary for him to consider the issue of causation, namely whether the provision of the lashing of a stay rope or threading it through the eyes of the cheeks would have been effective in preventing the vessel breaking away from its moorings and, if so and the plaintiff is liable in tort, whether the plaintiff has been guilty of contributory negligence: CF Astley v Austrust , supra. 30 Accordingly, I order that the appeal be upheld, and the case remitted to the magistrate who made the original order to further hear and determine the matter. ……………" 13 The matter came back before the learned Magistrate. Whilst no further evidence was adduced, the parties made further submissions. A judgment was delivered on 13 June 2001. 14 Although the defendant had submitted to the contrary, the learned Magistrate appears to have taken the approach that he should review the whole of the evidence. This saw him reviewing findings on matters which had not been disturbed by the judgment of Dunford J as well as dealing with the relevant matters that had not been addressed. 15 It seems to be common ground that the learned Magistrate did not reach any different finding on the matters that had been earlier addressed and that he merely expanded or polished the expression of reasoning process in relation to them. 16 Before proceeding further, I should mention certain matters of evidence. The plaintiff had not been on the yacht during a period from about May to August 1998. His evidence was that he had observed it at a distance from either a headland or a boat ramp about once or twice a month. The servicing procedure (which took place about three months before the storm activity) involved the defendant in inter alia taking the yacht from its mooring and then later returning it to the mooring. There was evidence that the defendant had a policy and practice of leaving the yacht moored as it had been found. There was also evidence that the yacht had been left as it was found (merely with a mooring rope over the bow roller). There was evidence that this was in effect a standard method. There was no snap clip and there was no securing of the mooring rope by additional rope. This evidence was accepted by the learned Magistrate. 17 The plaintiff had put his case in contract in a number of ways. He alleged both express and implied contractual provisions. There was dispute between the parties as to what had been agreed to between them. 18 A principal aspect of the plaintiff's claim was an allegation of an express term to secure the mooring line with a snap clip. This allegation was dependent on evidence given by the plaintiff concerning a conversation which he said took place in late November or early December 1994. The plaintiff and Mr Treharne gave conflicting evidence. The learned Magistrate preferred the evidence of Mr Treharne. Accordingly, the learned Magistrate came to the view that he was not satisfied that the plaintiff had proved, on the balance of probabilities, that the conversation took place. 19 Apart from rejecting this aspect of the claim on that basis, he took the view that the version of the plaintiff, even if accepted, would not prove the alleged express term. 20 In rejecting this aspect of the claim, he was merely reaffirming a decision earlier made. It was a decision founded on findings of fact after taking questions of credibility into account. If it be necessary to say so, it is my view that no basis has been shown for disturbing it. However, it was not disturbed by Dunford J and in my view, it is a decision that cannot be re-agitated in this appeal. 21 The other aspect of the plaintiff's case was an alleged implied condition that the yacht be resecured with due care and skill. This was one of the issues referred to in the judgment of Dunford J. This matter was addressed at various places in the judgment of the learned Magistrate. In submissions, the plaintiff accepts that this aspect of his case was rejected. In my view, such a rejection was open on the material. 22 The findings made in respect of that part of the claim pleaded by the plaintiff in contract brought about the result that his contractual allegations had failed. 23 In responding to what had been decided in the earlier appeal, the learned Magistrate made further new findings. I shall now turn to them. 24 He found that there was a contractual term to the effect that the yacht would be left as the defendant found it provided the owner was using a standard mooring procedure. 25 He firstly found that this was an express term of the contract. He was satisfied that it was the practice of the defendant to inform a client of that condition. In the event that the client was not specifically informed, he appears to have taken an alternative approach that it was implied by the nature of the work and by the defendant's practice. 26 The defendant concedes that there may be some difficulty concerning the finding of the express term. The plaintiff contends that it was made without any evidence. However, it is said that the difficulty is of no consequence in this particular case as the finding of the implied term was open on the evidence. If it be necessary to say so it seems to me that this is the case. 27 The plaintiff contends that the existence of such a term was not raised by the parties in the pleadings. Whilst the pleadings are not before me, this contention was not disputed. It is unclear what, if anything, was agitated during the hearing concerning such a term. The situation was complicated by the fact that the plaintiff was then appearing in person. At least in part the matter came to the fore in the judgment of Dunford J as one of the relevant issues that had not been addressed and it had been the subject of evidence. However, it may be that the introduction of the proviso (provided the owner was using a standard mooring procedure) can be seen as an aspect of the matter upon which the parties had not themselves litigated. In that sense, it may be said that there has been denial of procedural fairness. 28 Be that as it may, it seems to me to not be of significance. The finding as to this contractual term might be seen as in substance a further rejection of the claim in contract and/or providing an additional defence available to the defendant. In any event, the plaintiff's case in contract was also rejected for other reasons. 29 The learned Magistrate also dealt with the question of negligence. He found that the plaintiff had failed to prove negligence on the part of the defendant. 30 His judgment contains the following:- "145 It is clear that the defendant owed the plaintiff a duty to take reasonable care and not to act negligently. However, in determining negligence or the standard of care required one must have regard to the terms of the contract. In my view the duty owed by the defendant was to take reasonable care when resecuring the yacht to the mooring in the manner in which it was previously attached. 146 In support of that proposition, I intend to consider further the evidence. Firstly it should be noted that at no stage did the plaintiff allege in either his statement or his evidence that the defendant owed him a duty to secure the mooring rope by the use of additional ropes. The plaintiff did not plead such a duty in his pleadings." 31 What was said in paragraph 145 was in effect one of the grounds upon which he rejected the plaintiff's case in negligence. The formulation of the duty was in my view open on the evidence. 32 Whilst he did formulate this duty of care having regard to the earlier finding made as to the contractual term he also found that there was no duty at common law to use a method more secure than that adopted by the plaintiff himself. This was also open on the evidence. Further, he proceeded to deal with the case pleaded by the plaintiff and specifically rejected it. 33 The learned Magistrate may have erred in observing that the issue of securing the mooring rope by the use of additional ropes had not been raised in the pleadings. However, his observation on that matter came to be of no significance as he addressed this issue in any event. 34 The learned Magistrate proceeded thereafter to a consideration of the evidence. He had regard to the relevant circumstances of this particular case. He then specifically dealt with the issue of whether the defendant was negligent in not using an additional rope. He decided that the claim founded on that issue failed. 35 Accordingly, that part of the case pleaded by the plaintiff in negligence was also determined adversely to him. In my view, his decision was open on the material. 36 The learned Magistrate's rejection of the plaintiff's case in negligence led him to him not dealing with questions of causation and contributory negligence in the second judgment (although there was consideration given to them in the first judgment). That consideration saw the making of findings adverse to the plaintiff and he expressed himself as still being of that view. 37 The end result of what was done by the learned Magistrate was a rejection of the case advanced by the plaintiff (both in contract and negligence). In my view, any error that was made had no bearing on the ultimate result. 38 The plaintiff bears the onus of satisfying the court that there has been error which justifies the disturbing of the decisions which are the subject of appeal. In my view, the plaintiff has failed to discharge that onus. 39 Accordingly, the appeal fails and hopefully this saga may come to an end. 40 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. ********** Last Modified: 05/28/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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