R Cselka v Harwood Slipway Pty Ltd [2014] NSWCATCD 196

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: R Cselka v Harwood Slipway Pty Ltd [2014] NSWCATCD 196 Hearing dates: 29 July 2014 Date of orders: 08 October 2014 Decision date: 08 October 2014 Jurisdiction: Consumer and Commercial Division Before: R Harris, General Member Decision: 1. The respondent is to carry out the following work to the vessel Rosinante in a proper and workmanlike manner on or before 28 October 2014.

Install the mast. Put the vessel in the water. Commission the motor in the water. Install the radar and connect the electrics to the mast.

2. The applicant is to pay the respondent the sum of $24,000.00 upon the completion of the work in order 1. Catchwords: Construction of contract Cases Cited: Australian Broadcasting Commission v Australian Performing rights Association (1973) 129CLR99 Category: Principal judgment Parties: Robert Cselka(applicant) Harwood Slipway Pty Ltd (respondent) Representation: Counsel: Solicitors: File Number(s): GEN 14/13991

reasons for decision 1. This matter was heard at Grafton on 29 July 2014. The applicant appeared on his own behalf and Mr Cervella appeared on behalf of the respondent. The applicant consumer gave evidence and relied upon documents and photographs that were admitted into evidence subject to weight and relevance. Mr Cervella gave evidence as did Mr Roberts on behalf of the respondent supplier. The respondent also relied upon documents and photographs that were admitted into evidence subject to weight and relevance. 2. The application arose out of an agreement between the parties in 1999 for the respondent to repair and fit out the vessel "Rosinante" owned by the applicant. There had been previous proceedings in the Tribunal and its predecessor the Consumer Trader and Tenancy Tribunal between the parties in relation to this vessel. In the first matter number MV 13/12017 the applicant sought orders in excess of $30,000.00. That application was dismissed on 21 May 2013 due to the non-appearance of the applicant. The second matter GEN 13/27844 was withdrawn on 16 July 2013. On that day the Tribunal noted the signed agreement of the parties placed on the tribunal file. The third matter GEN 14/00232 was dismissed on 11 February 2014 for want of jurisdiction as the applicant sought orders with a value of $54,000.00. In the subject proceedings commenced on 6 March 2014 the applicant initially sought an order for payment of the sum of $30,000.00 as compensation for the alleged non-compliance with the signed agreement of the parties noted by the Tribunal on the 16 July 2013. At the commencement of the hearing on 19 July 2104 the applicant sought to amend the application to seek an amount of $40,000.00 being the new jurisdictional limit that came into force in May 2014 after the proceedings were commenced. The applicant was informed that this was not possible and that if the proceedings were withdrawn it would be on the basis that any fresh proceedings would have to be commenced in a court rather than the Tribunal. The applicant elected to proceed and abandoned any claim in excess of $30,000.00. 3. The applicant's case was that the agreement of 16 July had not been complied with in a number of respects as set out in a report from Navsafe Marine of 12 December 2013 arising from an inspection of the vessel carried out on 11 December 2013. That report stated that the purpose of the report was to review remedial work completed by the boat builder following Navsafe's first inspection report dated 22 October 2102 (which was also in evidence) in accordance with the CTTT document. This second report clearly states that "Mr Cselka and Harwood slipway have attended a mediation session and have a ruling from NSW Consumer Trader and Tenancy Tribunal (we have not sighted this document)." There was clearly no ruling from the Tribunal, only the agreement of the parties and the fact that the author of the Navsafe report had not seen that agreement detracts from its evidential value. The applicant relied upon a quote from Boatworx Australia in the sum of $66,770.00 however this quote was obtained in February 2013 before the agreement of 16 July and the second inspection which detracts from it evidential value as remedial work has been done since then. There was no quote submitted specifically dealing with the second Navsafe report of 12 December 2013 or the agreement of 16 July 2103. The applicant also relied upon a quote for antifouling from Richard Dorsett Marine Contracting in the sum of $2,800.00. The applicant claimed that his claim but for jurisdictional limit would be $3,9970 calculated by taking the quote of $66,700.00 and deducting the sums of $2,800.00 for antifouling and the sum of $24,000.00 to be paid pursuant to the agreement of 16 July 2013. The applicant gave evidence of his inspection of the vessel with Mr Blundell on 11 December 2013 from Navsafe Marine and pointed out the matters that he claimed were not completed in accordance with that agreement. 4. The agreement reached by the parties was handwritten and the applicant conceded in evidence that it was largely drafted by him. It is reproduced below 1. The survey report referred to in the document is the first report of Navsafe of 22 October 2012. The applicant placed great weight on the words in the agreement " including but not limited to the following " and "payable on completion when in compliance with surveyor" and "payment once survey/contractor passes work" to argue that the respondent was required to complete all work required by his surveyor not just the specific items mentioned in the agreement. 2. The respondent's case was that the respondent was only required to complete the specific items referred to in the agreement the majority of which had been completed. Mr Cervella a marine engineer of 30 years standing gave evidence that the work that was still required to be done was putting the mast up, putting the vessel in the water, commissioning the motor and installing the radar and connecting the electrics to the mast. Mr Cervella's evidence was that there only remained about $4,000.00 worth of work to be done and that it could be done within 7days. He pointed out that the second report referred to the timber which was never mentioned in the first report or the agreement of 16 July 2013. Mr Cervella pointed out that the television and bracket which was said to be defective had been supplied by the applicant as had the HF radio. Mr Roberts who was also a marine engineer and the managing director of the respondent confirmed Mr Cervella's evidence. 3. Both Mr Cervella and Mr Roberts evidence was that the vessel was a recreational vessel and as such it was inappropriate to refer to it as having to be "in survey" as that was a term used in relation to commercial vessels. The Tribunal notes however that the parties' agreement does not refer to the vessel being put "in survey" but refers to "surveyor" and "survey/contractor". 4. The Tribunal must first resolve the issue of the meaning of the agreement of 16 July 2103 between the parties. This is a question of law that the Tribunal must determine. The principles to be applied were set out by Gibbs J in Australian Broadcasting Commission v Australian Performing Rights Association (1973) 129CLR at 109-10 in the following terms: "It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, "even though the construction adopted is not the most obvious, or the most grammatically accurate", to use the words from earlier authority cited in Locke v Dunlop (1888) 39 Ch D 387, at p 393 , which, although spoken in relation to a will, are applicable to the construction of written instruments generally; see also Bottomley's Case (1880) 16 Ch D 681, at p 686 . Further, it will be permissible to depart from the ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument. Finally, the statement of Lord Wright in Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2; (1932) 147 LT 503, at p 514 , that the court should construe commercial contracts "fairly and broadly, without being too astute or subtle in finding defects", should not, in my opinion, be understood as limited to documents drawn by businessmen for themselves and without legal assistance (cf. Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429, at p 437 ). (at p110)" 1. Just because there are difficulties in interpreting a contract does not mean that ambiguity exists. The intention of the parties is to be determined objectively as a question of construction not from the subjective intent of one or other party but from the common intention set out in the language of the document. The matter is not without difficulty having regard to the presence of the words "including but not limited to" however applying these principles to this contract the Tribunal finds that agreement between the parties was that the respondent was to carry out the specific work referred to in the agreement to the satisfaction of the surveyor who must of course act reasonably. 2. Having considered the whole of the evidence both oral and documentary the Tribunal finds that the respondent is in breach of the agreement of the 16th July 2013 in not completing the work as set out by Mr Cervella. The Tribunal does not accept that the expression "all electrics" in the agreement extends to replacing defective equipment supplied by the applicant rather it is confined to the installation of the wiring and equipment supplied. Mr Cervella's evidence was that the following matters had still to be attended to putting the mast up, putting the vessel in the water, commissioning the motor and installing the radar and connecting the electrics to the mast and the Tribunal will order the respondent to carry out those works on or before the 28th October 2014 and the applicant to pay the respondent the sum of $24,000.00 upon completion of those works. (signed) R Harris General Member Civil and Administrative Tribunal of New South Wales 1. 8 October 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 January 2015