Rowland v Stevenson [2006] NSWSC 1339

New South Wales Supreme Court

CITATION : Rowland v Stevenson [2006] NSWSC 1339

HEARING DATE(S) : 10 and 11 July 2006

JUDGMENT DATE : 5 December 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice McLaughlin at 1

DECISION : Consonant with the task committed to me by the orders of Gzell J of 21 April 2005, I make the following orders (subject to the correction of any arithmetical errors): (1). Upon inquiry, I assess the damage to or the diminution in value of the French Bee caused while in the wrongful custody of the First Defendant in the amount of $98,662. (2). I order that the First Defendant pay to the Plaintiff compensation in the sum of $98,662. (3). I order that the First Defendant pay the costs of the Plaintiff of the inquiry before me in respect to the foregoing assessment.

CATCHWORDS : Wrongful detention. Compensation. Inquiry to assess damage to or diminution in value of a yacht.

PARTIES : Neil Mark Rowland (Plaintiff) Stuart Orr Stevenson (Defendant)

FILE NUMBER(S) : SC 2884 of 2004

COUNSEL : Mr. D. Bernie (Plaintiff) Mr. S. Philips (Defendant)

SOLICITORS : ES Lawyers (Plaintiff) Foulsham & Geddes (Defendant)

- 11 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Tuesday, 5 December 2006

2884 of 2004 NEIL MARK ROWLAND –v- STUART ORR STEVENSON

JUDGMENT 1 HIS HONOUR: These proceedings concern a yacht known as French Bee. 2 After a contested hearing occupying three days in March 2005 Gzell J published his reserved judgment on 14 April 2005. Subsequently His Honour on 21 April 2005 made orders to give effect to his reasons for judgment. Orders 4 and 5 of those orders are as follows: (4). The Master conduct an inquiry to assess any damage to or diminution in value of the French Bee caused while in the wrongful custody of the first defendant. (5). The first defendant pay to the plaintiff compensation as so assessed by the Master and the costs of such assessment. 3 The circumstances which have given rise to these proceedings and the details of the wrongful conduct of the First Defendant, Stuart Orr Stevenson (to whom I shall hereafter refer as "the Defendant"), in depriving the Plaintiff, Neil Mark Rowland, of his possession of the French Bee (which belonged to the Plaintiff) are set forth in detail in the reasons for judgment of Gzell J. It is unnecessary for me here to rehearse those circumstances and details. 4 The Plaintiff relied upon the following affidavits: Neil Mark Rowland, 2 June 2002 Craig Richard Armour, 6 June 2005 Michael Vincent Bartley, 31 May 2005 Michael Vincent Bartley, 10 August 2005. 5 The evidence of the Plaintiff and of Mr Armour essentially relate to their observations concerning the state of the yacht before and after each of the occasions when the Defendant unlawfully took possession of it, and to missing personal items when the yacht was finally returned to the Plaintiff in May 2005. Those items were valued by the Plaintiff in a total amount of $2,130. 6 The evidence of Mr. Bartley, a shipwright, was in the nature of expert evidence. He had prepared a cost report "determining the damage occasioned to French Bee by the Defendant whilst he was in possession of the boat and a quote for the costs of repairs to bring the boat to the condition it was prior to the Defendant taking possession on 13 May 2004". Those costs, including mooring and berthing fees, were in a total amount of $109,486. When the value of the missing personal items ($2,130) is added to that figure, the claim of the Plaintiff totals $111,616. 7 The Defendant relied upon the following affidavits: Stuart Orr Stevenson, 30 June 2005 Geoffrey Richard Foley, 30 June 2005 Christine Mary Clarke, 30 June 2005. 8 Each of the deponents of the foregoing affidavits was cross-examined on behalf of the opposing party. 9 The parties were in general agreement that the following issues appear on the affidavit material: · The state of the yacht before and after the possession by the Defendant · What items are allowable in respect of the damages assessment · What amounts are allowable in respect of those items. 10 I have had the benefit of receiving a written outline of submissions from Counsel for the Plaintiff. That document will be retained in the Court file. 11 In respect to the state and condition of the yacht before it was wrongfully taken by the Defendant on three separate occasions the evidence was essentially that of the Plaintiff and that of the Defendant. 12 The evidence of those two witnesses was in conflict in a number of respects. It becomes necessary for me, in resolving that conflict, to express my views on the credit of those witnesses. 13 The Plaintiff gave evidence in a frank and forthright fashion, conceding, where appropriate, several inaccuracies in his affidavit evidence. 14 The evidence of the Plaintiff was consistent with that of other witnesses who gave evidence on his behalf, especially that of Craig Richard Armour, who had been a crew member on the yacht and who had participated in its retrieval after it had be wrongfully taken by the Defendant on the first occasion. 15 The Defendant, on the other hand, was not a particularly impressive witness. He adopted a somewhat cavalier attitude in responding under cross-examination to questions regarding evidence adduced for the Plaintiff. He offered inconsistent explanations as to why he had removed the name French Bee from the yacht. He constantly responded with the word "rubbish" to questions put to him in cross-examination. His responses to questions concerning the balloon payment owing to Esanda and his stated understanding of the concept of the financial arrangements which he had with Esanda and Esanda's right to repossess the yacht were quite unbelievable. His use of the disparaging phrase "plastic yacht" to describe the French Bee (which had originally been purchased for more than $300,000) encapsulated the attitude of the Defendant to this property of the Plaintiff. The Defendant's volunteered reference to his "loving wife" throwing him out of his house did not favourably impress the Court. Neither did the Defendant's conduct in flinging an affidavit onto the Bar table as he was leaving the witness box. 16 Where the evidence of the Plaintiff and the evidence of the Defendant were in conflict, and where, apart from the oral testimony of each, there was no other evidence from any other witness or from any documentary material, I prefer the evidence of the Plaintiff to that of the Defendant. 17 The Plaintiff called expert evidence from Michael Vincent Bartley. Mr. Bartley was a well qualified shipwright, who, through his company, Michael Bartley Shipwrights, operates a shipwright business, restoring and repairing boats. Not only did Mr. Bartley give opinion evidence concerning the repairs required to be effected to the subject yacht and the cost of such repairs but also Mr. Bartley was in a position to give direct evidence from his own observations (observations made both before and after it had been taken by the Defendant) concerning the condition of the yacht before the Defendant unlawfully and wrongfully took it from the Plaintiff. 18 Concerning items of property which the Plaintiff said had been on the yacht before he had been wrongfully deprived of its use and possession, the Defendant said that he had no knowledge of those items and that he had not removed them. It is immaterial whether the Defendant personally removed the items. If they were there when he wrongfully took the yacht and they were not there when it was returned to the Plaintiff, the Defendant is responsible for their loss. I am satisfied from the evidence of the Plaintiff, supported by the evidence of Mr. Armour, that the items which were claimed by the Plaintiff in paragraph 16 of his affidavit of 2 June 2005 were on the yacht when it was taken by the Defendant. Accordingly, the Defendant is liable to pay to the Plaintiff by way of compensation the costs attributed to those items, in a total amount of $2,130. 19 In response to the expert evidence offered by Mr. Bartley on behalf of the Plaintiff, the Defendant proffered evidence from Geoffrey Richard Foley. That evidence was proffered in the nature of expert evidence. Mr. Foley's qualifications relied upon to substantiate his status as an expert in the field of maintenance and restoration of yachts were essentially that he had had long experience in sailing yachts and owning yachts. He was not and never had been a shipwright. In the face of opposition by the Plaintiff, I admitted the opinion evidence of Mr. Foley, which was largely in the nature of a response to the opinion evidence of Mr. Bartley. 20 It will be appreciated that the fact that I allowed Mr. Foley to give opinion evidence does not of itself mean that Mr. Foley's evidence must be treated as having equal weight to that of Mr. Bartley. 21 I regarded Mr. Bartley as a well qualified witness, with expertise in the area in which he was offering opinion evidence, being that of a shipwright, and with substantial practical experience in the field of maintenance, repair and restoration to yachts, including yachts such as the French Bee. (That vessel is of the kind known as a Beneteau yacht, the name apparently deriving from the town of the same name in France.) The fact that the present was the first occasion upon which Mr. Bartley had given expert evidence in Court did not in my view derogate from the weight to be attributed to his evidence. Indeed, for someone who was giving expert evidence, by way of affidavit and by way of oral evidence under cross-examination, for the first time, I was very favourably impressed by the quality of Mr. Bartley's evidence and by his responses in the witness box under cross-examination. 22 The fact that Mr. Bartley had received assistance from John Wigan (of John Wigan & Associates, management consultants) in preparing his report, and that, at times, Mr. Bartley used phrases identical to those appearing in Mr. Wigan's letter of 19 May 2005 (Exhibit 4) (such assistance and such use of identical phrases being conceded by Mr. Bartley) do not in my view derogate from the weight to be given to Mr. Bartley's evidence. 23 Where the opinion evidence of Mr. Bartley was in conflict with the opinion evidence of Mr. Foley, I preferred that of Mr. Bartley. 24 The Defendant disputed a number of specific items in Mr. Bartley's cost report. I shall proceed to deal seriatim with those disputed items. 25 It was submitted on behalf of the Defendant that the following items would require to be maintained on a fairly regular basis, every year or so, and that the conduct of the Defendant had not affected the responsibility of the Plaintiff for these items of maintenance: Item Amount 19. Services all deck winches $673 20. Strip and re-vanish timber toe rails $3,018 22. Clean, service and test operate electric anchor winch $165 23. Remove, de-rust, clean and stow anchor chain $218