High Court action successful

Press, 8 March 1984, Page 4

High Court action successful

Nelson reporter

The Nelson engineering firm Anchor Dorman, Ltd, has been successful in a High Court action heard in Nelson and Wellington late last year.

In a reserved judgment handed down by Mr Justice Quilliam, Anchor Dorman, as plaintiff, has been given judgment for $66,735 which it claimed as arrears of work done on the Welling-ton-based fishing trawler Marconi. The firm also won a coun-ter-claim for $267,322 which Marconi’s owners sought in general damages, repair costs, and loss of fishing revenue.

The firm has also been awarded interest of 11 per cent on the $66,735 from September, 1980, to the date of judgment and leave was reserved to apply for costs. The Marconi, an 18.29metre wooden trawler, was builty by Guards’ Sea Services in Nelson. The 1978 contract was for the construction of the hull and other wooden parts of the vessel. A separate contract was entered into with Anchor Dorman for trawl winches, propeller shafts, the auxiliary engine and other equipment and so were the subject of the dispute. It was the defendant’s case that virtually all the work done by Anchor Dorman was defectively done so that the owner, Mr Carl Muollo, should not have to pay for it and that the defects were such that the owner was involved in very substantial losses through repairs and loss of profit because the vessel was not available to fish full time, said the judgment. The defendant had coun-

ter-claimed for loss of revenue, repairs, and interest (totally $258,282), general damages of $55,000, and $15,000 damages for malicious arrest, a total of $328,282.

His Honour noted that during the hearing the claim for malicious arrest was abandoned as also were a number of items of special damages. Mr R. W. Worth and Mr J. R. Gresson appeared for the plaintiff company and Mr T. J. Castle for the defendant which, in the Admiralty action, was cited as the Marconi. The action, which his Honour described as having “had an unfortunate history,” was part-heard in Nelson and Wellington over 15 days in October and November.

After commenting on the “unfortunate history” and detailing the filing of allegations and pleadings, his Honour said the action went to trial before it was ready for hearing and the result had been the emergence during the trial of various issues not raised on the pleadings. “This most unpromising situation has resulted in a trial of inordinate length and considerable obscurity. This is something which will require careful consideration when it comes to fixing costs,” he said. The action revolved mainly around the supply from the agents, by Anchor Dorman, of a Volvo Penta auxiliary engine, the fabrication and delivery to Guards of an intermediate shaft, couplings and bearings, and the supply (to Anchor Dorman from C.W.F. Hamilton, Ltd) and the installation by Anchor

Dorman of a hydraulic split trawl system. In respect of the auxiliary engine, his Honour said that after it was installed it was found to be a reconditioned and not a new engine. It was the plaintiffs case that the owner had actually fared better in the end with the reconditioned engine obtained from the. agents, Moller Marine, than if he had received the less powerful engine he had ordered. The owner was not charged more than the price of the engine ordered and since the engine was not new he had received a refund of sales tax and a new engine warranty. A dispute which arose over this engine was that the owner claimed that he and Mr William Butters, Anchor Dorman’s manager, had come to an agreement on the terms on which Mr Muollo would accept the auxiliary engine.

Mr Butters had denied there had been an agreement which Mr Muollo said involved the replacement of the reconditioned engine with a new one and that Anchor Dorman would pay him $2OOO a day during the

time the vessel was out of use while the new engine was being fitted. “In this conflict I prefer the evidence of Mr Butters. I was impressed by the clear forthright manner in which he gave his evidence,” said his Honour. Of the winches, his Honours said that adjustments had been made to the winches in Wellington extending the delivery date under contract to September 12, 1980. No notice was given to Anchor Dorman of deficiencies in the workmanship or materials in the winches until the first amended statement of defence and counter-claim was filed, and then only obliquely. He therefore held that Anchor Dorman was entitled to the protection of clause 14 of the contract. The owner had also alleged the intermediate shaft and couplings were not machined correctly. It was not easy to arrive at any confident decision on this, he said.

He was prepared to accept that the owner experienced considerable vibration trouble and this was never resolved until Febru-

ary, 1983. The original intermediate shaft was taken out and replaced. At that time too, different bearings were installed.

“I think it probable that at least part of the trouble experienced by the owner was attributable to shortcomings in the machining of the shaft and couplings. The difficulty, however, lies in the fact that at least part, and perhaps the whole of the trouble, may have been, attributed to other reasons,” he said.

To determine this would involve considering the part played by Guards, who installed the shaft and who were involved in attempts to achieve a satisfactory system of lubrication for it. The original shaft was used in the vessel for two years and a half in a fairly full fishing programme. “Ordinarily I would endeavour to make and express finding as to liability of the plaintiff for defective work in case my decision concerning clause 14 (a) is wrong, but I do not in the present circumstances feel justified in attempting to do so,” said his Honour.