[F]or a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.

1. As the Court of Appeal recently observed in Reece:[682]

The courts are slow to imply a term. The more detailed and comprehensive the instrument the less ground there is for supposing that the parties have failed to turn their minds to address the question in issue. It is not enough that it is reasonable to imply a term; it must be necessary to do so to give business efficacy to the instrument ...

1. The first sentence of this quote was taken from the decision of Mason J in High Court in Codelfa. The full context of the quote is instructive to the present analysis:[683]

For obvious reasons the courts are slow to imply a term. In many cases, what the parties have actually agreed upon represents the totality of their willingness to agree; each may be prepared to take his chance in relation to an eventuality for which no provision is made. The more detailed and comprehensive the contract the less ground there is for supposing that the parties have failed to address their minds to the question at issue. And then there is the difficulty of identifying with any degree of certainty the term which the parties would have settled upon had they considered the question.

1. The Sale Contract is in no way 'detailed and comprehensive' in the sense referred to by Mason J in the passage quoted in the preceding paragraph. The Sale Contract is brief, to the point of being sparse. It was drawn up by Mr Black and Mr McWhirter ([47]), and so was not formally prepared and negotiated by lawyers on behalf of each party. It is not a case in which 'the parties have actually agreed upon represents the totality of their willingness to agree', to again quote Mason J. Rather, the Sale Contract is patently not complete as it does not even expressly provide for Breaksea to take possession of the Vessel while it consumed the MFL Units and pay the instalments of principal and interest.
2. In my view, applying the test laid down in BP Westernport properly construed, the Sale Contract does contain the Repair Implied Term. My reasons follow, applying the test in an order which makes logical sense in this case.
3. The Repair Implied Term does not contradict any express term of the Sale Contract. Indeed, it is consistent with the term of the Sale Contract that at 'any one time Pretar pty ltd may come aboard vessel without notification, and at any one time have access to all compartments of vessel'.[684] This condition only makes sense in the context of an obligation on Breaksea to maintain the Vessel in good working order.
4. Counsel for Breaksea put some weight on the fact that the Sale Contract expressly provides that the Vessel was taken 'as is where is'. In my view, the effect of this clause is that Pretar did not give any warranties, or make any representations, as to the state of repair of the Vessel at the point in time Breaksea took possession of it. It means that Breaksea could not make a claim against Pretar in relation to any repairs needed to place the Vessel in good working order based on the condition in which it was received from Pretar. So construed, the 'as is, where is' clause is not inconsistent with the Repair Implied Term. I add that it is not in dispute that the parties did not sign the Sale Contract until the end of August or beginning of September 2014, in circumstances where Breaksea had taken possession of the Vessel on 14 August 2014 and had done at least one fishing trip on it ([47] - [48]). So Breaksea knew the condition of the Vessel it was going to use and ultimately purchase.
5. The Repair Implied Term is, in my view, capable of clear expression. The way in which it is phrased in the formal court documents, as quoted at [713] is, in my view, clear. It is not vague, imprecise or ambiguous.[685]
6. The Repair Implied Term is, in my view, reasonable and equitable in the context of the Sale Contract as a whole.
7. One matter that goes to the reasonableness of the Repair Implied Term is that it operates in the context of the Vessel being insured, something which Breaksea agreed to pay for in the Expense Term. So there is a class of circumstances leading to the Vessel not being in good working order which would be covered by insurance, and not required to be paid by Breaksea pursuant to the Repair Implied Term. The repairs to the gearbox are a good example. Though the Repair Implied Term would have required Breaksea to have used any insurance payout to return the Vessel to good working order, and not just keep the proceeds.
8. The Repair Implied Term is, in my view, necessary to give business efficacy to the contract in the sense that the Sale Contract would not be as effective without it. In this regard, in Shone Murphy JA made the following observations which are relevant to the present analysis:[686]

It is to be recalled that a term cannot be implied by reason of business efficacy, unless it can be said that both parties would have consented to its inclusion. In Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226, 241, Gibbs CJ and Mason, Wilson, Brennan & Dawson JJ said of the alleged implied term in that case that it was:

'[Not] so obvious that both [parties] ... would clearly have agreed to its inclusion in the contract ... had they directed their minds to it at the time they concluded their bargain. This will commonly be the situation where the term sought to be implied is adverse to the interests of one of the parties, as they are adverse to the interests of [one party] here. An implication which may be regarded as obvious to one party may not be so regarded by the party detrimentally affected: Scanlan's New Neon Ltd v Tooheys Ltd [1943] HCA 43; (1943) 67 CLR 169 at 197; Treitel: The Law of Contract (1983) 6th ed, at 159. Unless it can be said that both parties would have consented to its inclusion, a term cannot be implied.'

1. In my view, Breaksea keeping the Vessel in good working order is at the heart of the business efficacy of the Sale Contract, and to the clear benefit of both parties. There would have been no viable way for the Vessel to consume the MFL Units, the subject of the Sale Contract, if the Vessel was not properly maintained. This was commercially necessary for Breaksea to generate income with which to pay the instalments of the purchase price and interest, with the ultimate objective of securing ownership of the Vessel. Moreover, save for the scenario in which the Sale Contract was terminated, the benefit of any money spent keeping the Vessel in good working order would ultimately accrue to Breaksea when ownership of the Vessel was transferred to it. From Pretar's perspective, it would have been deprived of income had the Vessel not been in good working order (as was indeed the case). In this way, it cannot be said that the Repair Implied Term is in any way asymmetrical.[687] Nor can it be described as a situation in which each party is 'prepared to take his chance in relation to an eventuality for which no provision is made'.[688] Having the Vessel in good working order was necessary to make the Sale Contract work commercially according to its terms.
2. An example illustrates the point. Assume the main engine on the Vessel broke down in circumstances which did not give rise to an insurance claim. Which party is responsible for fixing it? The obvious answer, in my view, is Breaksea.
3. Which leads to the final requirement. In my view, the Repair Implied Term is also so obvious that 'it goes without saying'. In summary, in my view, if a reasonable business person[689] in the position of Mr Black had asked a reasonable business person in the position of Mr McWhirter at the point in time the Sale Contract was being negotiated - 'Does Breaksea have to maintain the Vessel in good working order?' - the answer would have been a resounding - 'Yes, this goes without saying'. Although it is not strictly relevant, this is ultimately what Mr Black accepted in cross-examination ([54]).
4. For completeness sake I deal with the issue of SGA s 20 which counsel for Breaksea relies on in this context. That section provides:
   1. Risk, prima facie, passes with property

Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer the goods are at the buyer's risk, whether delivery has been made or not: Provided that where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault: Provided also that nothing in this section shall affect the duties or liability of either seller or buyer as a bailee or custodier of the goods of the other party.

1. Two points can be made. First, to the extent that the Repair Implied Term is inconsistent with SGA s 20, the parties have 'otherwise agreed' and the provision does not apply. The second is that Breaksea is a bailee of the Vessel as it has possession, but not ownership, of the Vessel for the purpose of using it pursuant to the terms of the Sale Contract. At common law a bailee has a duty to take reasonable care of the bailed goods (the scope of the duty depending on the circumstances).[690] This is recognised in the terms of SGA s 20. So it is not the case that SGA s 20 absolves the buyer of all responsibility in relation to the goods which it is in possession of, but does not yet have title to.

10.10 Determination - Scope of the Repair Costs Counterclaim

1. At this stage in the analysis it is necessary to address the argument made by Breaksea that the Magistrate erred in allowing Pretar to pursue the two additional components of the Repair Costs Counterclaim added in the materials filed on 15 June 2020 (see [340]). These are for the VMS and the repairs to the hull (the third additional component having been abandoned, being the replacement gearbox).[691]
2. In the Amended Counterclaim (quoted at [444]), it is apparent that:

(a) an amount of $2,120 was claimed for repairs to the hull (and was allowed by the Magistrate in the First Decision); and

(b) the claim in relation to the cost to replace the VMS was abandoned.

1. I have made some observations on the course adopted by the Magistrate at [494] - [496]. The three outstanding aspects of the counterclaim - the Purchase Price Counterclaim, the Unit Fees Counterclaim and the Management Fees Counterclaim - did not require any further evidence (as is evident from my analysis in Parts 7, 8 and 9). Having assessed damages on the Counterclaim at $35,585, and awarded damages in this amount ([339]), in my view the decision of the Magistrate at the end of the First Decision to allow the Respondents to file further particulars and adduce further evidence going to damages in effect allowed the Respondents to reopen their case and have a second opportunity to seek to prove the claim.
2. Based on the principles set out in section 4.1, I consider that the Magistrate had the power to allow Pretar to file further particulars of damages. In the Supreme and District Courts, pursuant to RSC O 21 r 5(2), those courts have the power 'at any stage of the proceedings' to grant leave to amend a pleading 'on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct'. The power to amend is an unfettered discretion.[692] The words 'at any stage of the proceedings' give the court jurisdiction to grant leave to amend even after judgment has been given.[693] Leave to amend pleadings at the conclusion of the trial is not unusual, and indeed may be desirable 'so that the record reflects the proceedings as they have been conducted'.[694] The fact that substantive reasons for decision have been handed down does not preclude leave to amend being given.[695] Nor does the fact that judgment has been given.[696] Those principles would apply by analogy to the general power to allow amendments in the Magistrates Court.
3. The Magistrate also had power to 're-open a case after a hearing has concluded but before judgment is delivered for the purpose of hearing additional submissions or admitting new or additional evidence'.[697] The principles by which this discretion should be exercised were summarised by Derrick J in 1110 Hay:[698]

A variety of factors will be relevant to the exercise of the discretion to re-open.

The guiding principle is whether the interests of justice are better served by allowing, or rejecting, the application to re-open.

Other factors which are relevant to the exercise of the discretion include:

1. The time at which the application is made (leave to re-open will be more readily given where the application is made after judgment has been reserved and before judgment has been given);
2. The likely prejudice to the party resisting the application;
3. The public interest in the finality of the litigation and the clear expectation that parties will advance all of their arguments at the time of the hearing; and
4. Case management principles, especially the need for the court to manage litigation efficiently, having regard to the limited resources of the courts and the demand for those resources.

Further, in a case like the present where the application is to re-open to admit additional evidence, additional factors relevant to the exercise of the discretion will include:

1. Why the evidence was not adduced at the hearing, and in particular whether a deliberate decision was made not to adduce the evidence, or whether the evidence would have been available had reasonable diligence been exercised; and
2. The materiality of the evidence to the issues in dispute and whether the admission of the evidence may produce a different result.
3. As power to allow the Respondents to file further particulars of damages and the power to allow them to reopen their case to adduce further evidence are each discretionary, the principles in House apply to the appellate review (see [548]).
4. In my view, the decision of the Magistrate to allow the Respondents to file further particulars of damages and reopen their case was so unreasonable or plainly unjust that I infer that in some way there has been a failure by the Magistrate to properly exercise the discretion reposed in him.[699] This is for five reasons.
5. The first is that the amount of the counterclaim had been reduced to that in the Amended Counterclaim based on what counsel for the Respondents was of the view could be proven on the evidence led at trial, with the remaining claims not being pressed.[700] So this is not a case in which the particulars needed to be amended to reflect proceedings as they have been conducted or align them with the evidence which had been led at trial ([354], [733]).
6. The second is that the nature of the additional evidence does not justify the exercise of the discretion.[701] The evidence in relation to the VMS was not new or fresh. There is nothing to suggest that this evidence was not known to Mr McWhirter at the time of the trial or could not have been obtained prior to the trial. The evidence in relation to the gearbox does relate to inquiries after the trial. However, there is nothing to suggest that this evidence could not have been obtained prior to the trial had reasonable diligence been exercised. Likewise with the quote for hull repairs which was obtained well after the trial concluded (13 June 2020), but could have been obtained earlier.[702]
7. The third is that, aside from the issue of interest, there was no need to allow the Respondents to adduce further evidence in relation to the remaining aspects of the counterclaim, being the Purchase Price Counterclaim, the Unit Fees Counterclaim and the MFL Fees Counterclaim.
8. The fourth is that, as discussed in section 4.2, the Magistrate took a strict position with Breaksea not allowing it to amend the Amended Claim to include the Unconsumed Units Claim. At one point in the hearing on 5 November 2018, the Magistrate told counsel for Breaksea in no uncertain terms that: 'The case for the claimant is finished'.[703] The Unconsumed Units Claim could have been determined on the evidence led at trial. The effect of the Magistrate's decision in relation to the additional components of the Repair Costs Claim was to allow the Respondents to amend their particulars of damages (which Breaksea was not allowed to do) and adduce further evidence (which Breaksea did not need to do). It is unjust for the Magistrate to have taken such an inconsistent position as between the parties.
9. The fifth reason is the decision to allow further evidence to be led some 18 months after the trial concluded undermines the public interest in the finality of the litigation. There was a clear expectation that the parties would put on all their evidence at trial. Indeed, the Magistrate adopted a strict position on this at the trial (see [317]). There is a particular need in the Magistrates Court to manage litigation efficiently, having regard to the limited resources of that court and the demand for those resources. This public interest required the decision to be made, and judgment given, on the evidence led at trial.
10. In my view, the interests of justice, both between these parties and for litigants more generally in the Magistrates Court, were not served by allowing the Respondents to file amended particulars and further evidence. There was no warrant to depart from the 'clear expectation' that parties will advance all of their evidence at trial. The Magistrate erred in exercising his discretion in this way in the manner described at [730]. Accordingly, the Magistrate's decision to award damages of $4,000 for the VMS and $6,000 for hull damage (set out at [342]) should be set aside. The Appeal should be determined on the basis of the Respondents' position in the Amended Counterclaim.

1. If Pretar can prove that Breaksea breached the Implied Repair Term, then it is entitled to damages. The principles by which those damages are assessed are well established, and may be summarised as follows:

(a) the onus of proving damages lies on Pretar as the innocent party;[704]

(b) it must first prove that the loss claimed was caused by the breach;[705]

(c) it must then prove the measure of damages claimed;[706]

(d) the general principle governing the measure of damages is that the innocent party suing for breach of contract is to be placed in the same position, so far as money can do it, as if the contract had been performed;[707]

(e) the corollary of (d) is that an innocent party is not entitled, by the award of damages upon breach, to be placed in a superior position to that which it would have been in had the contract been performed;[708]

(f) the compensation is to represent 'fair and adequate compensation for the loss suffered by reason of the breach of contract';[709]

(g) the measure of damages is to be objectively determined;[710]

(h) the assessment of these damages will ordinarily involve 'a comparison between the position in which the innocent party would have been if the breach of contract had not occurred and what, relevantly, represents the position in which the innocent party is in after the occurrence of the breach';[711]

(i) although damages are usually assessed at the date of breach, this rule is not always the case and 'it must give way in particular cases to solutions best adapted to giving an injured plaintiff that amount in damages which will most fairly compensate him for the wrong he has suffered';[712] and

(j) the party in breach may prove that the innocent party has failed to take reasonable steps to mitigate its damage, and demonstrate the extent to which there has been a failure to mitigate.[713]

Principles - Appellate review where there is a factual dispute based on credibility

1. I have set out above ([541] - [547]) the principles governing appellate review where the primary decision maker made findings which, to a substantial degree, were based on the credibility (or lack thereof) of witnesses. In summary, I must not interfere with a factual finding of this type unless persuaded that:

(a) the Magistrate's finding was wrong by reference to incontrovertible facts or uncontested testimony;

(b) the Magistrate's finding was glaringly improbable;

(c) the Magistrate's finding was contrary to compelling inferences; or

(d) the Magistrate failed to use, or has palpably misused, his advantage as a 'trial judge'.

1. In applying this test, the approach adopted by counsel for Breaksea in its grounds of appeal and submissions is to highlight a number of general matters from which the court is invited to conclude that the Magistrate erred in fact in generally preferring the evidence of Mr McWhirter to that of Mr Black. However, that is not the correct approach. The correct approach is to look at the specific factual findings to determine if there is a factual dispute and, if so, the evidence giving rise to the dispute.[714] If on this analysis there is no factual dispute, then there is no basis for the conclusion that the Magistrate, in accepting the evidence, made an error of the kind set out in [744].
2. The inquiry in relation to the specific factual finding includes an analysis of the cross-examination of the witness on the particular point. As to the significance of an absence of cross-examination, in Goodrich Aerospace Pty Ltd v Arsic Ipp JA observed:[715]

According to the ordinary conventions of the adversarial system, when a party does not cross-examine on evidence relating to a significant issue in a case, that party is taken to concede the point.

1. On the other hand, from the court's perspective:[716]

Prima facie, if there is no cross-examination of an expert (or indeed most witnesses), the court is entitled (but not bound) to accept the unchallenged evidence ... . The difficulty with this approach in the present case is the prima facie position is no more than that. A court is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence ...

1. The fact that a court is 'entitled (but not bound) to accept the unchallenged evidence' means that, if the evidence on the specific point is unchallenged, there is no basis for the conclusion that the Magistrate, in accepting the evidence, made an error of the kind set out in [744]. This is also in the context that the Magistrate was entitled to accept part, all, or indeed none of a witnesses' version of events. Moreover, the Magistrate was entitled to work out for himself a version of the case which did not exactly represent what either party has said.[717]
2. I am conscious that where 'credibility-based findings of fact are infected by material error and cannot be relied upon, or where an assessment of primary evidence contested on credibility grounds is called for, then the appellate court will generally not be in a position to make its own findings of fact'.[718] In that case, the ordinary course would be to remit the matter to the Magistrate Court for redetermination by a different Magistrate.[719] However, this is a course that neither counsel encouraged me to adopt.[720]
3. Once the factual basis is determined, the question of whether those facts constitute a breach of the Repair Implied Term does not raise the issues identified in the preceding paragraph. Rather, I may determine the matter for myself, formulating my own reasoning based on the factual basis I have found ([535]).

1. Before looking at the specific issues identified in the Amended Counterclaim, it is necessary to address two general points.
2. The first is the assertions made in the grounds of appeal as to the condition of the Vessel generally.
3. In ground of appeal 11(c) the assertion is made that the Magistrate erred in that he failed to consider the uncontradicted evidence of Chris Black, Mr Black Snr and Mr Robinson that Breaksea maintained the vessel and kept it in good working order (with references provided).
4. Mr Black's evidence is summarised in section 2.3 He sets out in some detail the work which that needed to be done to the Vessel once Breaksea took possession of it. In the passage of his evidence I have quoted at [83] Mr Black says the Vessel was in a lot better condition than when it was purchased (giving examples). He also gave evidence that the Vessel was not capable of operation between May 2015 and December 2015 ([84]). Mr Black's general evidence can be put to one side as it does not address the specific deficiencies in the Vessel identified by Mr McWhirter as at 1 January 2015. To the extent that Mr Black does specifically address these deficiencies, I deal with his evidence under the relevant item.
5. As to Mr Black Snr, I have summarised his evidence in section 2.4. He sets out in some detail the work done to the Vessel after Breaksea took possession of it which he was involved in. He also opined that as a result of these repairs to the Vessel it was in far better condition that it was in 2014. However, Mr Black Snr does not give evidence as to the condition of the Vessel when it was repossessed on 1 January 2016. Specifically he does not give any evidence which directly contradicts the evidence of Mr McWhirter as to the work required to be done post 1 January 2016 in order to return the Vessel to operational condition.
6. As to Mr Robinson, I have summarised his evidence in section 2.8. His evidence is based on four trips on the Vessel for Mr McWhirter and two for Breaksea, which proceeded Mr Black Snr replacing the Genset (which occurred in September 2014). Like Mr Black Snr, Mr Robinson does not give evidence as to the condition of the Vessel when it was repossessed on 1 January 2016. So he does not give any evidence which specifically contradicts the evidence of Mr McWhirter as to the work required to be done post 1 January 2016 in order to return the Vessel to operational condition.
7. In ground of appeal 12(e) the assertion is made that the Magistrate erred in finding that the Vessel was not in good working order as it was in survey to 15 March 2017. Reference is made to the certificate of survey in evidence.[721] However, this certificate was based on a survey done on 23 March 2015. So at best it is only evidence on the condition of the Vessel at that date. It is not evidence of the state of the Vessel when it was repossessed on 1 January 2016. For example, the survey predates the damage to the gearbox. Without a working gearbox, the Vessel was clearly not in good working order, notwithstanding it was 'in survey'.

1. Breaksea asserts that the Magistrate erred in assessing damages inclusive of GST.[722] It is not in issue that both Breaksea and Pretar are registered for GST.[723] This has the effect that Pretar is entitled to claim an input tax credit which it may offset against any taxable supply.[724]
2. The issue as to whether in assessing damages, the amount of any input tax credit should be deducted from the damages that would otherwise be awarded in each case turns on the application of the general compensatory principles, which I have set out at [743].[725] The position as regards a claim for damages to make good property where the recipient is registered for GST is summarised in Gagner by Campbell JA (with whom Macfarlan JA and Sackville AJA agreed):[726]

I accept that the consequence of these provisions is that, even though the Respondent might pay out an amount of GST in connection with the goods and services which it acquired for the purpose of making good the damage to its premises, it would be able to recover that amount back, either in the form of a reduction of the net amount it must remit to the Commissioner for the quarter in which the payment was made, or as a refund. Thus the amount of GST component of any payments it made for making good the premises would not ultimately be a loss that it suffered. Given the compensatory purpose of the damages award, it was wrong to include that component in the award of damages.

In summary, as the GST legislation currently stands, if the plaintiff in an action for tort is registered for GST purposes, and stands to receive an input credit for any GST payments incurred in making good its damage, and there is no impediment to the plaintiff receiving the full benefit of the input credit, that GST amount should be excluded from the quantum of damages recoverable.

That reasoning is apposite to the award of damages in contract in the present case in relation to the Repair Costs Counterclaim.[727]

1. The Magistrate made no allowance for any GST input credits in assessing damages for the Repair Costs Counterclaim. Where there was evidence that the invoice or quote relied on by Pretar included an amount for GST, the Magistrate thus erred in law by not deducting that amount from the gross amount of the invoice. In assessing the damages, I have noted where there is a GST input credit.

1. It is convenient to group together the claims in pars 3.1 - 3.4 of the Amended Counterclaim ([444]). For ease of reference, they are (to which I have added any identified GST component):

Cost of purchasing two second hand (broken) gearboxes to be repaired (Interim Gearbox) in order for the Defendants to operate the Vessel pending replacement of the Interim Gearbox with a proper gearbox (New Gearbox) to replace the one removed by the Claimant

Not evident on the face of the document as to the total amount of GST payable[728]

Cost of machining parts required for repairs to the Interim Gearbox and rudder performed by Condingup Machinery Repairs

Cost of parts to construct the Interim Gearbox supplied by Twin Disc Australia

Cost of repairs to the Interim Gearbox performed by Ches Power Group

1. It is not in dispute that the Vessel did not have an operating gearbox in it when it was repossessed. Nor is it in dispute that this meant that the Vessel was not capable of operation between May 2015 and 1 January 2016 when it was repossessed ([84]).
2. Based on these factual findings, I find that the fact that the Vessel did not have an operating gearbox when it was repossessed meant that the Vessel was not in good working order and Breaksea was thus in breach of the Repair Implied Term in this respect.
3. Breaksea asserted that Pretar failed to mitigate its loss by allowing Mr Black to install the reconditioned gearbox which had been procured using the proceeds of the insurance claim.[732] I have set out the offer made by Mr Black at [122]. The offer was on condition that Mr McWhirter 'returned all our goods'. In my view, it was not unreasonable[733] for Mr McWhirter to reject this offer as it was tied to the wider resolution of the dispute between Breaksea and Pretar. It follows that Pretar did not fail to mitigate its damages in not accepting this offer.
4. As to the measure of damages, I have summarised at [282] the evidence of Mr McWhirter as to the fact that each expense relating to the interim gearbox was incurred, including the supporting documentary evidence. This aspect of Mr McWhirter's evidence was not challenged in cross-examination. Breaksea did not lead any evidence to the effect that the Vessel did not need to have the interim repairs to the gearbox, or that the cost charged was excessive or unreasonable. So Mr McWhirter's evidence in this regard was uncontested meaning that there was no factual dispute in relation to this aspect of the Repair Costs Counterclaim.
5. In my view, there is no basis for a conclusion that the Magistrate's findings in regard to the expenses incurred in relation to the interim gearbox were the result of an error of the kind set out at [744].
6. For these reasons, with one caveat, I conclude that the Magistrate did not err in allowing the Repair Costs Claim insofar as it related to the interim gearbox and assessing damages in the amount of $6,619.90.
7. The caveat is that the amount of $6,619.90 included identified GST of $435.90 which the Magistrate did not deduct. For the reasons set out at [758] - [760], this was an error of law. The damages awarded should have been $6,184.

1. Paragraph 3.6 of the Amended Counterclaim is for $363 for the cost 'of compass survey to satisfy Department of Transport survey requirements performed by Esperance Marine Surveys' (quoted at [444]). The Magistrate found in terms of the counterclaim.
2. Mr McWhirter gave unchallenged evidence that when Pretar repossessed the Vessel, the compass survey was out of date, it having expired in August 2014. He also gave unchallenged evidence that it was necessary for the Vessel to have a current compass survey in order to be used as a commercial fishing vessel.[734] In his statement he said that this work was necessary to return the Vessel to its operational condition.[735] This statement was likewise not challenged in cross-examination.
3. Mr Black's evidence was that a compass survey was due to be carried out, which was to occur once the gearbox was installed ([80]).
4. It was thus not in issue that the compass survey on the Vessel had expired when the Vessel was repossessed, and that it required a current survey to be in working order. This is what the Magistrate in effect found. There is no basis for a conclusion that these findings by the Magistrate were the result of an error of the kind set out at [744].
5. Breaksea did not lead any evidence, or make any submissions, to the effect that it was not necessary for the Vessel to have a current compass survey for it to be in good working order.
6. Based on these factual findings, I find that the fact that the Vessel did not have a current compass survey when it was repossessed meant that that the Vessel was not in good working order when it was repossessed, and Breaksea was thus in breach of the Repair Implied Term in this respect.
7. As to the measure of damages, I have summarised at [282] the evidence of Mr McWhirter as to the fact that this expense was incurred, including the supporting documentary evidence. As regards the compass survey his evidence was neither challenged nor contradicted.
8. Again in relation to the measure of damages, there is thus no basis for a conclusion that the Magistrate's finding was the result of an error of the kind set out at [744].
9. For these reasons, with one caveat, I conclude that the Magistrate did not err in allowing the Repair Costs Counterclaim insofar as it related to the compass survey and assessing damages in the amount of $363.
10. The caveat is that the amount of $363 included identified GST of $33.00[736] which the Magistrate did not deduct. For the reasons set out at [758] - [760], this was an error of law. The damages awarded should have been $330.

1. Paragraph 3.7 of the Amended Counterclaims is for $3,021.50 for the cost 'to replace life raft removed by Mr Christopher Black in behalf of the Claimant (quote provided by West Offshore Products)' (quoted at [444]). The Magistrate found in terms of the Amended Counterclaim.
2. Mr McWhirter gave evidence that replacing the life raft was necessary to return the Vessel to its operational condition ([282]). He was not cross-examined on this evidence.
3. I have set out Mr Black's evidence in relation to the life raft at [129]. However, Mr Black does not say that the life raft which he referred to was actually on the Vessel when it was repossessed. He does not specifically contradict Mr McWhirter's evidence that replacing the life raft was necessary to return the Vessel to its operational condition. Breaksea did not lead any other evidence, or make any submissions, to the effect that it was not necessary for the Vessel to have a life raft for it to be in good working order.
4. This leaves Mr McWhirter's evidence uncontested. There is thus no basis for a conclusion that the finding by the Magistrate that replacing the life raft was necessary to return the Vessel to its operational condition was the result of an error of the kind set out at [744].
5. Based on this factual finding, I find that the fact that the Vessel did not have a life raft when it was repossessed meant that the Vessel was not in good working order when it was repossessed, and Breaksea was thus in breach of the Repair Implied Term in this respect.
6. As to the measure of damages, I have summarised at [282] the evidence of Mr McWhirter as to the quote for replacing the life raft. As regards the cost of replacing the lifeboat, his evidence was neither challenged nor contradicted.
7. The fact that the evidence was in the form of a quote is sufficient. In the words of EM Heenan J in Zuvela v Geiger:[737]

It is, nevertheless, pertinent to observe that damages for necessary rectification work can be recovered, even if the work has not been performed, let alone paid for, in which case the probable cost of the repairs will be the measure of damages. This will be so even if the claimant decides not to carry out the repairs and to use the damages for other purposes ...

It is quite common for damages to be assessed on the basis of a quote. The issue is whether the quote is a reasonable estimate for the work required to be done.[738] On occasion, there will be competing quotes or estimates. Here there was not.

1. In relation to the measure of damages, there is thus no basis for a conclusion that the Magistrate's finding was the result of an error of the kind set out at [744]. For these reasons, I conclude that the Magistrate did not err in allowing the Repair Costs Counterclaim insofar as it related to the replacement of the life raft and assessing damages in the amount of $3,021.50. The Magistrate did nor err in not deducting GST from this amount as it is not evident from the face of the quote that it included GST.[739]

1. Paragraph 3.9 of the Amended Counterclaim is for the cost of 'replacing 3 fishing nets' in the amount of $3,100 (quoted at [444]).
2. Paragraph 3.10 of the Amended Counterclaim is for the cost of repairing and supplying fishing nets by Great Southern Seafoods' in the amount of $12,812 (quoted at [444]).
3. The Magistrate found in terms of the Amended Counterclaim. The Magistrate dismissed the Conversion Claim, which included a claim for fishing nets. For reasons which will become significant in a few paragraphs, it is necessary to consider these two claims together.
4. I have set out Mr McWhirter's evidence in relation to the number of fishing nets on the Vessel when it was repossessed at [272] and [274]. In summary, he says that there were only two nets on the Vessel when it was repossessed, and that he needed to repair five more to make the seven that were on the Vessel when Breaksea took possession of it. Mr McWhirter does not say that there were no nets on the Vessel when it was repossessed, just that there were only two nets.[740] It was not put to Mr McWhirter in cross-examination that there were seven nets in good working order on the Vessel when it was repossessed. So his evidence to the contrary was unchallenged. Nor was it put to Mr McWhirter in cross-examination that 1,350 m of the nets on the Vessel were owned by Breaksea.
5. I have set out Mr Black's evidence in relation to the number of fishing nets on the Vessel when it was repossessed at [117] - [119]. In summary, he concedes that Breaksea had removed around 1,000 m of net (2.17 nets based on each net being 460 m long[741]) before the Vessel was seized, leaving approximately 1,105 m belonging to Pretar (2.4 nets) and 1,350 m (2.9 nets) belonging to Breaksea (in total 2,455m).[742] I note that Mr Black's evidence as to the volume of nets he purchased and/or repaired prior to the Vessel being repossessed was not specifically challenged in cross-examination, and was consistent with the documentary evidence.
6. It is at this point that there appears to be a factual dispute. However, in order to determine the scope of the factual dispute, it is necessary to first resolve a legal issue.
7. Breaksea, in the Conversion Claim, seeks damages for the 1,350 m of nets which it says it purchased and were on the Vessel when it was repossessed. In the Repair Costs Claim, Pretar seeks the cost of repairing an additional five nets, which in effect, returns the Vessel to the position of having seven nets (which is more or less 3,500 m - 7 x 406 m). The legal issue is whether the Repair Implied Term required Breaksea to maintain the Vessel with 3,500 m of fishing nets. If it did:

(a) both the right to possession and title to the 1,350 m of nets which it purchased, and that Mr Black says on the Vessel when it was repossessed, passes to Pretar, and Breaksea cannot maintain a claim in conversion for it;

(b) Breaksea had an obligation to make up the difference between the amount of nets on the Vessel and the 3,500 m it was required to maintain on the Vessel which Pretar claims in the Repair Costs Counterclaim.

1. On the other hand, if the Repair Implied Term did not require Breaksea to maintain the Vessel with 3,500 m of fishing nets, then:

(a) Breaksea retained both the right to possession of, and title to, the 1,350m of nets which it purchased, and can maintain a claim in conversion for it; and

(b) Pretar's claim for this aspect of the Repair Costs Counterclaim must fail.

1. Self-evidently in my view, in order for a commercial fishing vessel to be in good working order, it has to have nets. Under the terms of the Sale Contract, the MFL Units were to be consumed on the basis of either 3,500 m or 4,000 m of nets. If the Vessel did not have this volume of nets, it could not consume all the MFL Units the subject of the Sale Contract. It follows that, in my view, in order for the Vessel to be kept in good working order, it needed at least 3,500 m of nets. Breaksea had an obligation to maintain at least 3,500 m of nets in good working order.
2. As mentioned, Mr McWhirter's unchallenged evidence was to the effect that there was not at least 3,500 m of nets in good working order on the Vessel when it was repossessed.
3. It also follows that the money expended by Breaksea in repairing the nets that were on the Vessel when it took possession of it, or purchasing new nets, to maintain 3,500 m of nets was part of its obligation to keep the Vessel in good working order. Title to any nets purchased by Breaksea must be taken to have passed to Pretar under the terms of the Sale Contract, so they cannot be the subject of a claim in conversion. To the extent that it was necessary for Pretar to expend money to get the number of nets back to around 3,500 m, it can recover this amount in the Repair Costs Counterclaim.
4. The net result is that there was no real factual dispute between the parties, and the end result reached by the Magistrate was correct in law.
5. As to the measure of damages, I have summarised at [282] the evidence of Mr McWhirter as to the fact that this expense was incurred, including the supporting documentary evidence. This aspect of Mr McWhirter's evidence was neither challenged nor contradicted by Breaskea.
6. In relation to the measure of damages, there is no basis for a conclusion that the Magistrate's finding was the result of an error of the kind set out at [744].
7. For these reasons I conclude that the Magistrate did not err in allowing the Repair Costs Counterclaim insofar as it related to the replacement of the fishing nets and assessing damages in the amount of $15,912. The Magistrate did nor err in not deducting GST from this amount as it is not evident from the face of the invoices that they included GST.[743]

1. Paragraph 3.11 of the Amended Counterclaim is for '[r]epairs to the hull and paintwork performed by Feature Paints' in the amount of $2,120 (quoted at [444]). The Magistrate found in terms of the Amended Counterclaim.
2. Breaksea did not adduce any evidence to the effect that it was not necessary for this work to be done. There is a reference in the grounds of appeal that 'the hull damage did not affect the working order of the vessel as it completed six sea trips after the damage was repaired by the Appellant'.[744] However, Mr McWhirter was not cross-examined on this point, so his evidence that this work was necessary to return the Vessel to its operational condition ([282]) must be regarded as unchallenged.
3. It was thus not in issue that it was necessary to repair the hull of the Vessel in order to return it to its operational condition. This is what the Magistrate in effect found. There is no basis for a conclusion that this finding by the Magistrate was the result of an error of the kind set out at [744].
4. Based on this factual finding, I find that the fact that it was necessary to repair the hull of the Vessel in order to return it to its operational condition meant that the Vessel was not in good working order when it was repossessed, and Breaksea was thus in breach of the Repair Implied Term in this respect.
5. As to the measure of damages, I have summarised at [282] the evidence of Mr McWhirter as to the fact that this expense was incurred, including the supporting documentary evidence. As regards the cost of hull repairs, his evidence was neither challenged nor contradicted.
6. In relation to the measure of damages, there is thus no basis for a conclusion that the Magistrate's finding was the result of an error of the kind set out at [744].
7. For these reasons, with one caveat, I conclude that the Magistrate did not err in allowing the Repair Costs Counterclaim insofar as it related to repairs to the hull in the amount of $2,120.
8. The caveat is that the amount of $2,120 is inclusive of GST (which would have been $192.73)[745] which the Magistrate did not deduct. For the reasons set out at [758] - [760], this was an error of law. The damages awarded should have been $1,927.27.

Determination - Re-commissioning starboard generator

1. Paragraph 3.12 of the Amended Counterclaim is for the cost of 'parts to re-commission starboard gesnerator [sic] (quote provided by Fleet Hydraulics)' in the amount of $2,990.20 (quoted at [444]). The Magistrate found in terms of the Amended Counterclaim.
2. Mr McWhirter gave evidence that this work was necessary to return the Vessel to its operational condition ([282]). His evidence was not challenged in cross-examination. Breaksea did no adduce any evidence to the effect that it was not necessary for this work to be done. In ground of appeal 12(f), reference is made to evidence that the starboard generator had been defective prior to the Vessel being repossessed. However, even if it was, it does not undermine the conclusion that it was necessary to recommission the starboard generator in order to return the Vessel to its operational condition, at least in the absence of cross-examination to this effect.
3. The Magistrate in effect found that it was necessary to re-commission the starboard generator of the Vessel in order to return it to its operational condition. In the absence of cross-examination or specific contradictory evidence, there is no basis for a conclusion that this finding by the Magistrate was the result of an error of the kind set out at [744].
4. Based on this factual finding, I find that the fact that it was necessary to re-commission the starboard generator of the Vessel in order to return it to operational condition meant that the Vessel was not in good working order when it was repossessed, and Breaksea was thus in breach of the Repair Implied Term in this respect.
5. As to the measure of damages, I have summarised at [282] the evidence of Mr McWhirter in relation to the quote for this work, including the supporting documentary evidence. I reiterate my comments at [785] about quotes. Breaksea did not adduce evidence to the effect that this quotation was not a reasonable estimate for the work required to be done, nor make a submission to this effect.
6. In relation to the measure of damages, there is thus no basis for a conclusion that the Magistrate's finding was the result of an error of the kind set out at [744].
7. For these reasons, with one caveat, I conclude that the Magistrate did not err in allowing the Repair Costs Counterclaim insofar as it related to re-commissioning the starboard generator in the amount of $2,990.20.
8. The caveat is that the amount of $2,990.20 included GST of $271.83[746] which the Magistrate did not deduct. For the reasons set out at [758] - [760], this was an error of law. The damages awarded should have been $2,718.37.

1. Paragraph 3.13 of the Amended Counterclaim is for the cost of 're-building rope cutters from prop shaft (quote provided by Davies Wear Plate Systems) in the amount of $2,918.30 (quoted at [444]).
2. Paragraph 3.14 of the Amended Counterclaim is for the cost of 'slipping to facilitate replacement of rope cutters performed by Esperance Professional Fishermen' in the amount of $1,378.30 (quoted at [444]).
3. The Magistrate found in terms of the Amended Counterclaim.
4. Mr McWhirter gave evidence that this work was necessary to return the Vessel to its operational condition ([282]). His evidence in this respect was not challenged in cross-examination.
5. Mr Black did give evidence that the rope cutters had been removed, but that they were 'left on the Vessel in the galley storage area in perfect condition' ([133]). His evidence in this respect was not challenged in cross-examination. Mr Black's evidence does not, however, contradict Mr McWhirter's evidence that it was necessary for the Vessel to have rope cutters installed in order to return it to operational condition. So this aspect of Mr McWhirter's evidence is unchallenged.
6. It was thus not in issue that the rope cutters on the Vessel had been removed at the point in time it was repossessed and that it was necessary for the Vessel to have rope cutters installed in order for it to be operational. This is what the Magistrate in effect found. There is no basis for a conclusion that this finding by the Magistrate was the result of an error of the kind set out at [744].
7. Based on this factual finding, I find that the fact that the rope cutters on the Vessel had been removed and that it was necessary for the Vessel to have rope cutters installed in order for it to be operational, meant that the Vessel was not in good working order when it was repossessed, and Breaksea was thus in breach of the Repair Implied Term in this respect.
8. As to the measure of damages, I have summarised at [282] the evidence of Mr McWhirter in relation to the quote for this work, including the supporting documentary evidence. I reiterate my comments at [785] about quotes. Mr McWhirter gave evidence that the basis for the estimate of the cost of slipping the Vessel to facilitate replacement of the rope cutters was the slipping fees incurred when repairing and repainting the hull.[747] This evidence was not challenged in cross-examination.
9. The quote relied on by Pretar to re-build the rope cutters notes that 'original is unserviceable'.[748] This aspect of the evidence was not specifically challenged by counsel for Breaskea. So Mr McWhirter's evidence in not inconsistent with the documentary evidence in this respect. It was not put to Mr McWhirter in cross-examination that he could, and should, have reinstalled the original rope cutters (the subject of Mr Black's evidence) as opposed to having them rebuilt as quoted. In my view, this means that there is no basis for a conclusion that the Magistrate's finding was the result of an error of the kind set out at [744].
10. For these reasons, with one caveat, I conclude that the Magistrate did not err in allowing the Repair Costs Counterclaim insofar as it related to the broken rope cutters in the amount $4,296.60.
11. The caveat is that the amount of $4,296.60 included GST which the Magistrate did not deduct. The quote from Davies Wear Plate Systems was $2,653 excluding GST.[749] For the reasons set out at [758] - [760], this was an error of law. The amount paid to Esperance Professional Fishermen does not mention GST.[750] The damages awarded should have been $4,031.30.

1. Paragraph 3.15 of the Amended Counterclaim is for the cost of 'recommissioning vessel monitoring system by Esperance Communications' in the amount of $1,650.44 (quoted at [444]).
2. The Magistrate found in terms of the Amended Counterclaim.
3. Mr McWhirter gave unchallenged evidence that this work was necessary to return the Vessel to its operational condition ([282]). Breaksea did not adduce any evidence to the effect that it was not necessary for this work to be done. Nor was there any submission to this effect.
4. It was thus not in issue that it was necessary to recommission the VMS on the Vessel in order to return it to its operational condition. This is what the Magistrate in effect found. There is no basis for a conclusion that this finding by the Magistrate was the result of an error of the kind set out at [744].
5. Based on this factual finding, I find that the fact that it was necessary to recommission to VMS on the Vessel in order to return it to operational condition meant that the Vessel was not in good working order when it was repossessed, and Breaksea was thus in breach of the Repair Implied Term in this respect.
6. As to the measure of damages, I have summarised at [282] the evidence of Mr McWhirter as to the fact that this expense was incurred, including the supporting documentary evidence. Breaksea did not adduce evidence to the effect that the amount claimed was unreasonable for the work required to be done, nor make a submission to this effect.
7. In relation to the measure of damages, there is no basis for a conclusion that the Magistrate's finding was the result of an error of the kind set out at [744].
8. For these reasons, with one caveat, I conclude that the Magistrate did not err in allowing the Repair Costs Counterclaim insofar as it related to the recommissioning the VMS in the amount of $1,650.44.
9. The caveat is that the amount of $1,650.44 included GST of $150.04[751] which the Magistrate did not deduct. For the reasons set out at [758] - [760], this was an error of law. The damages awarded should have been $1,500.40.

Determination - Cost of anchor rope, net weights and pink floats

1. Paragraph 3.17 of the Amended Counterclaim is for the cost of 'anchor rope, net weights and pink floats (supplied by Waterfront ACM Marine Group, Max Marine and Taylor Marine) (quoted at [444]).
2. The Magistrate found in terms of the Amended Counterclaim.
3. Mr McWhirter gave evidence that this work was necessary to return the Vessel to its operational condition ([282]). This is what the Magistrate in effect found. Mr McWhirter was not cross-examined on this evidence. Mr Black did give some evidence about the ropes, floats and weights on the Vessel when it was repossessed ([137]). However, his evidence was not put to Mr McWhirter to challenge his evidence on the basis that it was not necessary for Pretar to purchase the ropes, weights and floats that it did. So Mr McWhirter's evidence remained unchallenged. The end result is that, in my view, there is no basis for a conclusion that this finding by the Magistrate was the result of an error of the kind set out at [744].
4. Based on this factual finding, I find that the fact that it was necessary to purchase anchor rope, net weights and pink floats for the Vessel in order to return it to its operational condition meant that the Vessel was not in good working order when it was repossessed, and Breaksea was thus in breach of the Repair Implied Term in this respect.
5. As to the measure of damages, I have summarised at [282] the evidence of Mr McWhirter as to the fact that these expenses were incurred, including the supporting documentary evidence. His evidence was unchallenged and Breaksea did not adduce any contradictory evidence.
6. In relation to the measure of damages, there is no basis for a conclusion that the Magistrate's finding was the result of an error of the kind set out at [744].
7. For these reasons, I conclude that the Magistrate did not err in allowing the Repair Costs Counterclaim insofar as it related to the cost of anchor rope, net weights and pink floats in the amount of $1,611.25. The Magistrate did nor err in not deducting GST from this amount as it is not evident from the face of the invoices that they included GST.

1. In summary, the Magistrate did not err in allowing the Repair Costs Counterclaim in the following amounts:

11. Did the Magistrate err in dismissing the Insurance Claim?

(a) the Sale Contract contained an express term that 'all responsibilities, running cost and expenses including fuel, Insurances and pen fees to be paid by Breaksea fishing Company PTY LTD' (being the Expense Term referred to at [679]);[752]

(b) on 17 March 2015 Breaksea paid the insurance on the Vessel for the 12 months commencing 21 February 2015 in the amount of $9,240[753] (though in the Claim it is said to be $10,318.50[754]);

(c) the Respondents repossessed the Vessel on 1 January 2016; and

(d) the 6 January 2016 letters of demand included the Insurance Claim, in the amount of $5,324.45 ([144]).

1. The Insurance Claim is set out in section 4.9. In summary, Breaksea claims for the proportion of the insurance it paid for on the Vessel for the period from 1 January 2016 to 21 February 2015[755] when the Vessel was in the possession of the Respondents.

1. The Magistrate did not expressly deal with the Insurance Claim. Rather, as set out in section 5.1, the focus of the First Decision was on the issue of which party repudiated the Sale Contract. The entirety of Breaksea's claim was simply dismissed (see [339]).

1. The Insurance Claim is addressed in ground of appeal 3(b):

13 MAY 2020: Error of law dismissing claim by failing to take into account claim did not depend upon repudiation

1. The learned Magistrate erred in law and fact on 13 May 2020 in dismissing the Appellant's claim in its entirety and in failing to refer to or consider the Appellant's claims and submissions (as stated at T23, last paragraph, of the oral closing submissions on 2 July 2019 (AB 1363 & 1364) and page 25, first paragraph, (AB 1414) of the reasons) when the Appellant's claims included four distinct elements each of which were payable irrespective of repudiation as stated in the Appellant's oral closing submissions on 2 July 2019 at T16, last paragraph, (AB 1356) and T17, first paragraph, (AB 1357) T22, third paragraph, (AB 1362) and T23, last paragraph (AB 1363) being:

(b) $1,470.04 paid by the Appellant for insurance of the vessel when the Respondents' had possession, which the Respondents' conceded they were liable to pay in their written closing submissions dated 29 November 2018 (paragraphs 23.3 & 26).(AB 1322) ...

1. Counsel for Breaksea points out in submissions in the Appeal that in written closing submissions, counsel for the Respondents conceded this claim, specifically:[756]

Pretar concedes Breaksea is entitled to the Insurance Payment, being the amount of $1,470.02. This amount should be set-off against any award made in Pretar's favour'.

1. In oral submissions, counsel again drew the court's attention to this concession.[757]

1. In the hearing of the Appeal, counsel for the Respondents did not seek to withdraw the concession made at trial.

1. Ground of appeal 3(b) is in essence an assertion that the Magistrate erred in law by failing to provide any (or any adequate) reasons for dismissing the Insurance Claim. This error has been made out, notwithstanding MCA s 31 and the considerations identified at [539] - [540]. There are no reasons for dismissing the Insurance Claim, especially in the face of the concession by counsel for the Respondents.
2. There are no disputed factual issues in relation to the Insurance Claim. So I am in a position to substitute my own decision for that of the Magistrate ([549]).
3. For the reasons set out in section 7.6 Pretar is the party to the Sale Contract again whom the Insurance Claim may be brought.
4. It is not clear on what basis Breaksea could succeed in the Insurance Claim. It was paid to the insurer, and not Pretar (so no issue of it being a conditional payment can arise). It was not paid in breach of the Sale Contract, as Breaksea was under an express obligation to pay insurance. It could not be framed as damages for loss of future performance of the Sale Contract (see [593]). Nor could it be maintained as a claim in restitution. Breaksea did not pay it to the insurer under a mistake of fact or law. It received the benefit of the insurance from the insurer for around 10 months, so there was no total failure of consideration vis-à-vis the recipient.
5. Be that as it may, Pretar conceded the Insurance Claim. This basis for doing so is not apparent. However, it could have been on the basis of an implied term that if Pretar retook possession of the Vessel, it would refund Breaksea for the proportion of the insurance period during which it was in possession of the Vessel. I find that Breaksea is entitled to judgment against Pretar in the amount of the Insurance Claim.

12. Did the Magistrate err in not allowing Breaksea to bring Unconsumed Units Claim?

1. It is not in issue that between 8 August 2015 and 17 September 2015 Breaksea made three payments totalling $10,144.55 (which I have defined as the 'Unconsumed Unit Payments) ([68]; section 4.6). Breakea only claims $9,222.22, which the amount of $10,144.55 exclusive of GST.
2. The Unconsumed Unit Payments, as I understand them, represent the difference between the amounts paid by Breaksea for fishing units which it actually consumed ($48,715.55) (see [67]) and the amount payable for the lease of fishing units for the 2014/2015 fishing season under the Sale Contract ($54,000 plus $5,400 GST = $59,400). However, this difference is $10,684.45 (incl GST), so the precise basis of the claim is not entirely clear.
3. The amount for the Unconsumed Unit Payments was not claimed in the 6 January 2016 letter of demand ([144]).

1. As set out at [332], [337] and [338] the Magistrate made clear his view that the Unconsumed Units Claim was not properly before the court. Accordingly, the Magistrate did not deal with this claim in his reasons for decision.

1. The Unconsumed Units Claim is dealt with in ground of appeal 3:

13 MAY 2020: Error of law dismissing claim by failing to take into account claim did not depend upon repudiation

1. The learned Magistrate erred in law and fact on 13 May 2020 in dismissing the Appellant's claim in its entirety and in failing to refer to or consider the Appellant's claims and submissions (as stated at T23, last paragraph, of the oral closing submissions on 2 July 2019 (AB 1363 & 1364) and page 25, first paragraph, (AB 1414) of the reasons) when the Appellant's claims included four distinct elements each of which were payable irrespective of repudiation as stated in the Appellant's oral closing submissions on 2 July 2019 at T16, last paragraph, (AB 1356) and T17, first paragraph, (AB 1357) T22, third paragraph, (AB 1362) and T23, last paragraph (AB 1363) being:

(c) $9,222.22 for lease payments for unconsumed fishing units which were not payable under the contract Exhibit 5 (AB 128-130) which expressly provided 'We pay as we consume' and 'Each trip, as units are consumed the lease of the licence will be paid on that amount 1 trip behind' as raised by the Appellant in both its claim and defence to counterclaim and as expressly pleaded by the Respondents' in paragraph 8.3(a) of the Substituted Statement of Defence to General Procedure Claim dated 18/10/17 ('the Defence') (AB 32.V1) that the Appellant was liable to pay for, which was a real issue between the parties at trial (as referred to at paragraph 19 of the Appellant's written closing submissions dated 28 November 2018 (AB 1302) and paragraphs 27-32 of the Respondents' written closing submissions).(AB 1323) ...

1. Breaksea's submissions are based on the premise that the Unconsumed Unit Claim was always in issue. As mentioned [361], there is no ground of appeal to the effect that the Magistrate erred in not allowing Breaksea to amend its claim to add the Unconsumed Units Claim. Accordingly, this point was not addressed in either written or oral submissions in the appeal.
2. In submissions, counsel for Breaksea points out that in the June 2017 Claim, there is a reference to payments made for unconsumed units (which are identified) and then in parenthesis next to the total amount paid the words: '(an overpayment of $10144.45 as there was no contractual liability to pay for unconsumed units plus GST)'. I interpose here to add that this amount was not claimed in the loss and damages identified in the June 2017 Claim.[758]
3. Counsel then asserts that:[759]

(a) the Respondents in the Defence deny that Breaksea was not liable to pay the Unconsumed Unit Payments, and assert that Breaksea was liable to pay the full amount of the MFL Unit Fees whether or not the units were consumed;[760]

(b) at the trial, in oral opening submissions, both counsel put in issue Breaksea's claim for the Unconsumed Unit Payments;[761]

(c) the issue of the Unconsumed Unit Payments was dealt with in the evidence of Mr Black, in his witness statement, in cross-examination and re-examination;[762]

(d) the issue of the Unconsumed Unit Payments was dealt with in the evidence of Mr McWhirter in cross-examination;[763] and

(e) both counsel addressed the issue in written and oral closing submissions.[764]

1. As to the substantive basis for this claim, counsel described it as 'an accrued right to payment of money recoverable irrespective of breach'. Counsel referred the decision of Dixon J in McDonald which I have considered in detail at [590] - [597].
2. A second basis is identified, being that the payment was made for a consideration that has failed.

1. I have set out the Respondents' position as to the proper interpretation of the Sale Contract at section 8.6. In effect, the Respondents' position is that while the MFL Unit Fees do not have to be paid upfront, and may be paid as they are used, the agreed amount still has to be paid in full by the end of the relevant fishing season.

1. As set out in section 4.3, Breaksea was never given leave to amend the June 2017 Claim to include the Unconsumed Units Claim. The Magistrate made this clear to counsel for Breaksea on many occasions. The repeated failure of counsel for Breakea to accept this ruling was most disrespectful. As I have said, if counsel took issue with the ruling, the appropriate course was to appeal the ruling and not simply ignore it. This was not a case in which the Magistrate erred by failing to consider a matter in issue. The Unconsumed Units Claim was not in issue at the trial.
2. As I have already mentioned ([361]), Breaksea did not assert in the Appeal that the Magistrate erred in not allowing Breaksea to amend the June 2017 Claim to include the Unconsumed Units Claim.
3. Be that as it may, if leave had been given, the Unconsumed Units Claim would, if determined according to law, have been dismissed.
4. The first basis for the Unconsumed Units Claim, being in contract, based on the decision in McDonald. However, the points which I derive from this decision at [592] - [597] do not assist Breaksea. The Unconsumed Units Claim is not a claim for the recovery of instalments paid towards the purchase price of property which was never transferred. Rather, it is for the use of the MFL Units. Under the Sale Contract, it has the exclusive use of the MFL Units by way of a lease. Pretar has surrendered the right to use them to generate income. As set out in section 8.7, the Sale Contract, properly construed, obliged Breaksea to pay the entirety of the MFL Units payments totalling $54,000 by the end of the relevant fishing season. It did so (though the arithmetic calculations do not precisely add up - see [859]). There is no basis in the contract to assert that Pretar's receipt of these amounts was in any way conditional.
5. As to the second basis, as a matter of law Breaksea could have framed the Unconsumed Units Claim as a claim in restitution for return of money paid under a mistake of law, being the construction of the Sale Contract.[765] However, Breaksea did not make the payments the subject of the Unconsumed Units Claim under a mistake of law. Again, as set out in section 8.7, the Sale Contract, properly construed, obliged Breaksea to pay the entirety of the MFL Units payments totalling $54,000 by the end of the relevant fishing season, which is what it did.
6. In summary, while the Magistrate was not in error in not determining the Unconsumed Units Claim, in any event the claim was without merit.

13. Did the Magistrate err in dismissing the Conversion Claim?

1. Breaksea's position at the close of evidence on its claim in relation to the chattels on the Vessel when it was repossessed it is set out in section 4.11. The legal basis identified is 'detention or conversion of goods'. It is not entirely clear whether the reference to 'detention' is an alternate reference to conversion or a reference to a cause of action in detinue. However, Breaksea does not seek the return of the specific items the subject to the Conversion Claim, so it does not appear that a claim in detinue is asserted. I will treat this as an assertion of cause of action in conversion, as indeed counsel have done in their submissions. Neither counsel suggest that a different outcome would arise under the tort of detinue to that under the tort of conversion.
2. Counsel for Breaksea is correct to assert that this claim is an independent claim in tort which is separate to, and not dependant on, the issue of the repudiation of the Sale Contract. The tort of conversion is a stand-alone cause of action. There is one potential caveat to this conclusion. This is that in some cases it is necessary to consider the contractual arrangement between the parties to determine whether the plaintiff had an immediate right of possession of the chattel sufficient to found an action for detinue or conversion.[766] This is the case with Breaksea's claim for the fishing nets.

1. The Magistrate did not expressly deal with the Conversion Claim. Rather, as set out in section 5.1, the focus of the First Decision was on the issue of which party repudiated the Sale Contract. There was a general preference for the evidence of Mr McWhirter over that of Mr Black, but no analysis of the factual issues relating to the Conversion Claim. Breaksea's claim was simply dismissed in its entirety, which must be taken to include the Conversion Claim (see [339]).

1. The concerns in relation to the Conversion Claim are set out in ground of appeal 3(d):

13 MAY 2020: Error of law dismissing claim by failing to take into account claim did not depend upon repudiation

1. The learned Magistrate erred in law and fact on 13 May 2020 in dismissing the Appellant's claim in its entirety and in failing to refer to or consider the Appellant's claims and submissions (as stated at T23, last paragraph, of the oral closing submissions on 2 July 2019 (AB 1363 & 1364) and page 25, first paragraph, (AB 1414) of the reasons) when the Appellant's claims included four distinct elements each of which were payable irrespective of repudiation as stated in the Appellant's oral closing submissions on 2 July 2019 at T16, last paragraph, (AB 1356) and T17, first paragraph, (AB 1357) T22, third paragraph, (AB 1362) and T23, last paragraph (AB 1363) being:

(d) $35,043.04 for the conversion of goods on the vessel in possession of the Appellant when the vessel was seized by the Respondents', which was not dependent upon repudiation as stated in the Appellant's oral closing submissions on 2 July 2019 at T 23, last paragraph, (AB 1363) and when the seized goods (including the new main port genset purchased for $18,218.20 referred to in paragraph 7 (AB 65 & 66.V1) and annexure 'A' (AB 78-79.V1) of Exhibit 3, which Mr McWhirter refused to permit to be removed (at T97,middle paragraph, (AB 1180.V3) T101, last paragraph (AB 1184.V3) and T126,third last paragraph (AB 1209.V3) on 5/11/18) and installed by the Appellant at no cost; nets purchased for $9,559.00 referred to in paragraphs 95 & 96 (AB 165 & 166.V1) & annexure 'T' pages 23-25 (AB 384-386.V1) of Exhibit 6 and pages 18,19,20 & 22 (AB 429-431 & 433.V1) of Exhibit 13; and an alloy net skid purchased for $2,283.60 referred to in paragraph 63(g) (AB 152.V1) & annexure 'K'9 (AB 259.V1) of Exhibit 6); were not available for collection (contrary to the finding at page 39, second last paragraph, of the reasons) (AB 1428) while a belated offer that 11 items (including the genset which was not available for collection) were available for collection 1000kms from their seizure (as stated by Mr McWhirter at T103 (AB 1186.V3) & 125 (AB 1208.V3) on 5/11/18) was unreasonable.

1. Ground of appeal 3(d) is in essence an assertion that the Magistrate erred in law by failing to provide adequate reasons for dismissing Breaksea's claim in conversion. This error has been made out, notwithstanding MCA s 31 and the considerations identified at [539] and [540]. There are essentially no reasons on the Conversion Claim.
2. As was apparent in section 4.11, the Conversion Claim had three distinct components: the Undisputed Items, the Genset and the Disputed Items.[767] The Magistrate's reasons ought to have identified each component and at least provided short reasons in relation to each.
3. I have set out at [549] - [552] the principles which govern whether a re-trial is necessary where there has been an appellable error by failing to provide adequate reasons. It is necessary to apply these principles separately to each of the three components of the Conversion Claim.

1. Like the torts of nuisance[768] and negligence[769], the tort of conversion involves the application of a legal standard in respect of which there can be only one uniquely correct outcome. The task of the appellate court is to determine for itself that correct outcome based on the evidence before the trial court:[770]

The duty of the appellate court is to decide the case-the facts as well as the law-for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question

1. Consistent with the manner in which I have summarised the evidence in relation to the Conversion Claim, it is instructive to deal with this claim by separately considering the Undisputed Items, the Genset and the Disputed Items. As will soon become apparent, each involves different legal issues. For this reason, it is also more convenient to consider the parties submissions in relation to the three aspects of the claim for conversion.
2. Before doing so, I need to address two issues common to each component of the Conversion Claim.
3. The first is that any item of tangible property capable of being physically possessed may be the subject of an action in conversion.[771] I find that each item the subject of the Conversion Claim is a chattel for which the tort of conversion may be brought.
4. The second is the issue of against whom the Conversion Claim may be maintained. In the Claim, Breaksea only asserts that Mr McWhirter took possession of the Vessel and items the subject of its claim for detention and conversion. However, the damages claim aggregates these damages with the damages for breach of the Sale Contract.[772] In the Defence, the plea is that 'the Defendants' are in possession of the Undisputed Items and the Genset, and deny being in possession of the remainder.[773] In their submissions in the Appeal, counsel for the Respondents refers to them collectively in addressing the claim for detention and conversion. As a matter of both principle and practical reality, two persons or entities can be in joint possession of property. Accordingly, I proceed on the basis that the Conversion Claim is against both Respondents, that is, that Pretar and McMcWhirter personally are alleged to be in joint possession of the chattels the subject of this claim.

1. The Undisputed Items are set out at [113]. For ease of cross-reference, they comprise items A, B, C, E, F, G, I, L, Q and R of Annexure T to Mr Black's witness statement.
2. The following facts were not in dispute on the evidence before the Magistrate:

(a) the Undisputed Items were on the Vessel when it was repossessed by the Respondents ([113]);

(b) the Undisputed Items were taken into the possession of the Respondents where they remained at the date of trial ([113]);

(c) by letters dated 6 January 2016 to each of Pretar and Mr McWhirter, Breaksea demanded the return of the Undisputed Items (along with the Genset and the Disputed Items) ([144]);

(d) the Respondents had offered for Mr Black to collect the Undisputed Items ([113]);

(e) the offer was on the basis that the Undisputed Items were available for collection from Mr McWhirter in Eneabba ([113], [277]);

(f) Eneabba is some 1,000 km from Esperance ([277]); and

(g) as at the date of trial the offer to make the Undisputed Items available for collection was still open ([113]).

1. The Respondents submit that the claim for conversion in relation to the Undisputed Items is misconceived. This is because on repeated occasions the Respondents have offered for Breaksea to collect these items.[774]

1. Breaksea submits that the imposition of a condition that the Undisputed Items be collected from a placed some 1,000 km from the place at which they were seized was unreasonable. Being an unreasonable condition, it did not excuse their seizure.[775]

1. The 'essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right to possession of the person who has the property or special property in the chattel'.[776] '[B]efore there can be conversion the taking of the chattel must have been without lawful justification, and that it must be shown there was an intention to exercise permanent or temporary dominion over it'.[777] The intent required is 'an intention to deprive or impair the owner's immediate right to possession of the chattel'.[778] Or put slightly differently but to the same effect: 'The required intent on the part of a defendant is therefore to interfere or deal with the goods by exercising dominion over them on their own behalf or on behalf of someone other than the plaintiff'.[779]
2. It is not in issue that, since taking possession of the Vessel, the Respondents have given Breaksea a standing invitation to come and collect the Undisputed Items. On this basis, I find that neither Respondents had an intention to exercise either permanent or temporary dominion over any of the items comprising the Undisputed Items.
3. On the facts before the Magistrate which were not in dispute, and the law I have identified, Breaksea has not proven the Conversion Claim in relation to the Undisputed Items. The Magistrate did not err in dismissing the Conversion Claim insofar as it related to the Undisputed Items.

1. The following facts were not in dispute on the evidence before the Magistrate:

(a) the genset was purchased new from Zenith Engineering Pty Ltd for $18,218.20 ([121], [150] - [151]);

(c) it was installed in the Vessel in early September 2014 ([121]);

(d) the Genset was on the Vessel when it was repossessed ([113]);

(e) by the date on which the Vessel was repossessed, the Genset had about 2,000 to 2,500 hours of use ([121], [165]) and

(f) by letters dated 6 January 2016 to each of Pretar and Mr McWhirter, Breaksea demanded the return of, among other items, the Genset ([144]);

(g) Mr McWhirter did not offer for Mr Black to come and collect the Genset ([113]); and

(h) Mr McWhirter had a conversation with Mr Black on 27 December 2015 in which the told Mr Black that he had no intention of letting the Genset be removed from the Vessel, but offered Mr Black $15,000 for it ([261]).

1. Mr McWhirter gave evidence about what it would require to remove the Genset ([259] and [260]). His evidence was to the effect that the removal of the Genset would result in the Vessel 'being cut to pieces' ([266]). This aspect of his evidence was not challenged in cross-examination. Mr McWhirter's evidence as to what it would take to remove the Genset accords with that of Mr Black Snr when describing the installation of the Genset in the first place ([151]).
2. On the evidence which I have summarised it is clear that it was not in issue that the Genset was on the Vessel when it was repossessed and that it was not among the items which the Respondents invited Mr Black to collect.
3. The was, however, a dispute as to value of the Genset, which I will deal with at [905] and [906].

1. The Respondents submit that Breaksea cannot bring an action in conversion in respect of the Genset as it was paid for, and owned by, Phoenix (that is, Mr Black Snr's business).[780]

1. Breaksea's submissions are to the effect that it was not in issue that the Genset was on the Vessel when it was repossessed and that the Respondents have refused to return it.[781]

1. The Respondents objection to Breaksea's claim to the Genset is misconceived. As set out at [891], it is a sufficient basis for a claim in conversion for Breaksea to have a right to possession of the Genset. In the words of the Court of Appeal: 'Proof of ownership is unnecessary'.[782] Whether or not Breaksea owned the Genset is immaterial. It is clear that the Genset was installed on the Vessel in September 2014 and was on the Vessel when it was repossessed. During this time the Vessel, and thus the Genset, was in the possession of Breaksea.
2. The Respondents concede that the Genset was owned by Phoenix. They did not seek to argue that possession of it passed to Pretar as part of the obligation to maintain the Vessel in good working order (see [793]).
3. On the facts before the Magistrate which were not in dispute, and the law I have identified, Breaksea has proven its claim for conversion on the balance of probabilities. The Magistrate thus erred in dismissing the Conversion Claim insofar as it related to the Genset. Applying the principles set out at [549] - [551], from the court record, I am in a position to substitute my own decision for that of the Magistrate. I find that Pretar and Mr McWhirter are liable in conversion to Breaksea in relation to the Genset.
4. Breaksea is entitled to damages in conversion for the Genset. As to the measure, it should receive compensation in a sum which, so far as money can do so, will put it in the same position as it would have been in if the tort had not been committed.[783] 'In most cases of conversion it is, of course, obvious that its application will result in the injured plaintiff recovering the full value of the property converted since that will usually represent the loss that he has sustained by the defendant's wrongful act'.[784] The general rule is that damages for conversion are assessed at the date of the conversion.[785] No party suggested any departure from this general rule. The value of the property converted is thus the market value of the particular chattel at the date of conversion. For completeness sake, I add that I do not consider that it is appropriate to take into account any GST input credit in assessing this loss. The damages are for the loss of the chattel, so it is the market value of the good inclusive of GST which is the measure of damages.[786] They are different to the damages considered in the Repair Costs Counterclaim which inherently involve the expenditure of money to make good damage for which a GST input credit could be claimed (see [758] - [759]).[787]
5. Consistent with the principles set out at [549] - [551], from the court record, I am in as good a position as the Magistrate to assess the quantum of damages.
6. Each of Mr Black Snr and Mr McWhirter gave opinion evidence as the value of the Genset as at the point in which the Respondents repossessed the Vessel. Mr Black Snr opined that the Genset would only have dropped in value by around 10% after 2,000 hours of use, giving it a value in the order of $16,396 ([165]). Mr McWhirter gave evidence that a second-hand genset which had done around 2,500 hours would have a value of $10,000 ([287]). He did however offer Breaksea $15,000 for it ([287]).
7. There is no rational basis to distinguish between the opinions of Mr Black Snr and Mr McWhirter.[788] Neither was a properly qualified expert in relation to the valuation of second hand gensets. Each essentially gave generalised market evidence. Each gave an opinion based on their practical experience. There was no detail as to the specific gensets to which they each refer to enable a determination as to the similarity to the Genset (including as to the number of hours). Nor is there any information as to the dates on which the relevant transactions took place. Their evidence is at best an estimate. The appropriate way to assess damages is to treat each of their evidence as generalised market evidence, and to value the Genset at the midpoint of their respective estimates, being $13,200 ($16,396 + $10,000/2).

1. Breaksea's submissions focus on the Magistrate's decision to prefer the evidence of Mr McWhirter to that of Mr Black.[789]

1. The Respondents' submissions are to the effect that the Magistrate did not err in finding that Breaksea had not proven on the balance of probabilities that the Disputed Items:[790]

(a) were purchased by Breaksea, that is, that Breaksea had title to them; and/or

(b) were or are in the possession of Pretar or Mr McWhirter.

1. More generally, counsel for the Respondents submitted that the Magistrate did not err in preferring the evidence of Mr McWhirter to that of Mr Black.

1. The Disputed Items are set out at [114] and [115]. For ease of cross-reference, I repeat the table set out at [115]:

Paragraph in Mr Black's statement [791]

1 x EPIRB (original cost but now quotes as $199.00)

1. It is not in issue that, by letters dated 6 January 2016 to each of Pretar and Mr McWhirter, Breaksea demanded the return of, among other items, the Disputed Items ([144]). Nor is it in dispute that neither Pretar nor Mr McWhirter have offered to return the Disputed Items.
2. It is at this point in the analysis that we reach a dispute of facts. The Magistrate preferred the evidence of Mr McWhirter to that of Mr Black. As set out in detail in the grounds of appeal, which I have quoted in various parts of this decision, Breaksea says that this was an appellable error.
3. The principles which I have outlined at [541] - [547] apply to the appellate review of this aspect of the Magistrate's decision. This requires me to first determine whether there was a factual dispute in relation to a particular item and, if so, whether the Magistrate erred in preferring the evidence of Mr McWhirter to that of Mr Black.
4. The onus is on Breaksea to prove that the relevant item was on the Vessel when it was repossessed and, if so, the value of that item on the date it was repossessed.
5. Mr Black's evidence was that each of the Disputed Items was on the Vessel when it was repossessed ([112], [114]). He also gave evidence that Breaksea had purchased each item, providing documentary information as to how much Breaksea paid for it ([115]). As mentioned ([114]), Mr Black was not cross-examined to the effect that the Disputed Items were not in fact on the Vessel when it was repossessed.

1. In cross-examination, Mr McWhirter said that there was an EPIRB on the Vessel when it was repossessed, being one that he had purchased and installed on the Vessel ([279]).
2. The Magistrate's decision is to the effect that he preferred this evidence of Mr McWhirter to Mr Black's evidence to the contrary. The question then becomes whether Breaksea has established that this finding of the Magistrate was the result of an error of the kind set out at [541] - [547], as summarised at [744].
3. In my view, this decision of the Magistrate was not wrong by reference to incontrovertible facts or uncontested testimony. It is not glaringly improbable. Nor is it contrary to compelling inferences.
4. Large swathes of the grounds of appeal and Breaksea's submissions set out detailed criticisms of the Magistrate's general approach in preferring the evidence of Mr McWhirter to that of Mr Black. I have set out the reasoning of the Magistrate on this issue at [480] and [482]. In particular, I observe that the Magistrate was very transparent in putting on the record the observations he made of each of Mr Black and Mr McWhirter at the time they gave evidence. Bearing in mind the 'limited scope for appellate interference' which I have set out at [541] - [547], I do not consider that the Magistrate failed to use, or has palpably misused, his advantage as a 'trial judge'.
5. Accordingly, Breaksea has not discharged the onus on it to establish that the Magistrate made an error of fact in relation to this finding.
6. In the event that I am wrong in this decision, had I found that the Magistrate erred in dismissing this aspect of the Conversion Claim, it would have made no material difference to the outcome. This is because on the evidence before the Magistrate I would not have been persuaded on the balance of probabilities that a second hand EPIRB has any market value. The quote attached to Mr Black's statement is to the effect that a new EPIRB in February 2017 cost $199.[792] However, there is no evidence as to the market value of a second hand EPIRB. Any attempt by me to determine the market value of a second hand EPIRB would be no more than a guess or speculation.

1. Mr McWhirter gave evidence that there was no fuel in the Vessel when he repossessed it ([280] - [281]).
2. The Magistrate's decision is to the effect that he preferred this evidence of Mr McWhirter to Mr Black's contrary evidence. The question then becomes whether Breaksea has established that this finding of the Magistrate was the result of an error of the kind set out at [744].
3. The Magistrate's decision was not wrong by reference to uncontested testimony. Both Mr Black and Mr McWhirter annexe receipts for diesel fuel. The fact that in September 2015[793] Breaksea purchased some fuel for the Vessel does not, in my view, become an 'incontrovertible fact' that there was still fuel on the Vessel when it was repossessed. I do not consider that the Magistrate's decision to prefer Mr McWhirter's evidence is wrong by reference to incontrovertible facts. Nor, in my view, is the Magistrate's decision glaringly improbable or contrary to compelling inferences. For the reasons set out at [919], I do not consider that the Magistrate failed to use, or has palpably misused, his advantage as a 'trial judge'.
4. Accordingly, Breaksea has not discharged the onus on it to establish that the Magistrate made an error of fact in relation to this finding.

1. Mr McWhirter's evidence was that, when he repossessed the Vessel there were not two Davey pumps on the Vessel ([278]).
2. The Magistrate's decision is to the effect that he preferred this evidence of Mr McWhirter to Mr Black's contrary evidence. The question then becomes whether Breaksea has established that in making this finding the Magistrate made an error of the kind set out at [744].
3. The Magistrate's decision was not wrong by reference to uncontested testimony. Whilst there is documentary evidence that in the second quarter of 2015 Breaksea purchased two Davey pumps,[794] this is not incontrovertible evidence that the pumps were in fact on the Vessel when it was repossessed. I do not consider that the Magistrate's decision to prefer Mr McWhirter's evidence is wrong by reference to incontrovertible facts. Nor, in my view, is the Magistrate's decision glaringly improbable or contrary to compelling inferences. For the reasons set out at [919], I do not consider that the Magistrate failed to use, or has palpably misused, his advantage as a 'trial judge'.
4. Accordingly, Breaksea has not discharged the onus on it to establish that the Magistrate made an error of fact in relation to this finding.

1. Mr McWhirter did not give evidence-in-chief that there was no 24 volt stop solenoid on the Vessel when it was repossessed. However, he was not cross-examined to the effect that there was a 24 volt stop solenoid on the Vessel the property of Breaksea when it was repossessed. Whilst this is unsatisfactory, the end position is that Mr Black's evidence that there was a 24 volt stop solenoid the property of Breaksea on the Vessel when it was repossessed was not challenged, so this fact must be taken as uncontested testimony. By in effect making a finding contrary to this uncontested testimony, the Magistrate made an error of fact.
2. Because the testimony of Mr Black was uncontested, this does not fall into the class of factual error identified at [549] in which I am not in a position to make my own finding of fact. Accordingly, I find that Breaksea has proven on the balance of probabilities that there was a 24 volt stop solenoid belonging to it on the Vessel when it was repossessed which the Respondents have not offered to return.
3. Breaksea is entitled to damages for this conversion. As set out at [903], the measure is the market value of the particular chattel at the date of conversion. The invoice attached to Mr Black's statement is to the effect that a new 24 volt stop solenoid in March 2015 cost $181.50.[795] There is no evidence as to the market value of a second hand 24 volt stop solenoid. Any attempt by me to determine the market value of a second hand 24 volt stop solenoid would be no more than a guess or speculation. On the evidence that was before the Magistrate, I am not persuaded on the balance of probabilities that a second hand 24 volt stop solenoid has any market value, so I make no allowance for damages.

1. Mr McWhirter did not give evidence-in-chief that there was no 12 volt inverter on the Vessel when it was repossessed. However, he was not cross-examined to the effect that was a 12 volt inverter on the Vessel the property of Breaksea when it was repossessed. Again, whilst this is unsatisfactory, the end position is that Mr Black's evidence that there was a 12 volt inverter the property of Breaksea on the Vessel when it was repossessed was not challenged, so this fact must be taken as uncontested testimony. By in effect making a finding contrary to this uncontested testimony, the Magistrate made an error of fact.
2. Because the testimony of Mr Black was uncontested, this does not fall into the class of factual error identified at [549] in which I am not in a position to make my own finding of fact. Accordingly, I find that Breaksea has proven on the balance of probabilities that there was a 12 volt inverter belonging to it on the Vessel when it was repossessed which the Respondents have not offered to return.
3. Breaksea is entitled to damages for this conversion. As set out at [903], the measure is the market value of the particular chattel at the date of conversion. The invoice quote attached to Mr Black's statement is to the effect that a new 12 volt inverter cost $170 in July 2014.[796] There is no evidence as to the market value of a second hand 12 volt inverter. Any attempt by me to determine the market value of a second hand 12 volt inverter would be no more than a guess or speculation. On the evidence that was before the Magistrate, I am not persuaded on the balance of probabilities that the 12 volt inverter on the Vessel when it was repossessed had any market value, so I make no allowance for damages.

1. Mr McWhirter's evidence was that, when he repossessed the Vessel, there was no medical kit on the Vessel ([278]).
2. The Magistrate's decision is to the effect that he preferred this evidence of Mr McWhirter to Mr Black's contrary evidence. The question then becomes whether Breaksea has established that in making this finding the Magistrate made an error of the kind set out at [744].
3. The Magistrate's decision was not wrong by reference to uncontested testimony. Whilst there is documentary evidence that at some point (the date is obscured) Breaksea purchased a medical kit,[797] this is not incontrovertible evidence that there was a medical kit on the Vessel when it was repossessed. I do not consider the Magistrate's decision to prefer Mr McWhirter's evidence as wrong by reference to incontrovertible facts. Nor, in my view, is that Magistrate's decision glaringly improbable or contrary to compelling inferences. For the reasons set out at [919] nor do I consider that the Magistrate failed to use, or has palpably misused, his advantage as a 'trial judge'.
4. Accordingly, Breaksea has not discharged the onus on it to establish that the Magistrate made an error of fact in relation to this finding.

1. I pause here to observe that the fact that there is a claim for $20 worth of used rags is yet another unsatisfactory aspect of the manner in which Breaskea has pursed this claim. Be that as it may, the claim was before the Magistrate so must be determined.
2. Mr McWhirter did not give evidence-in-chief that there were no rags on the Vessel when it was repossessed. However, he was not cross-examined to the effect that there were rags on the Vessel the property of Breaksea when it was repossessed. Whilst this is unsatisfactory, the end position is that Mr Black's evidence that there were rags the property of Breaksea on the Vessel when it was repossessed was not challenged, so this fact must be taken as uncontested testimony. By in effect making a finding contrary to this uncontested testimony, the Magistrate made an error of fact.
3. Because the testimony on Mr Black was uncontested, this does not fall into the class of factual error identified at [549] in which I am not in a position to make my own finding of fact. Accordingly, I find that Breaksea has proven on the balance of probabilities that there were rags belonging to it on the Vessel when it was repossessed which the Respondents have not offered to return.
4. Breaksea is entitled to damages for this conversion. As set out at [903], the measure is the market value of the particular chattel at the date of conversion. The invoice quote attached to Mr Black's statement is to the effect two 15 kg blocks of rags cost $63 in December 2014.[798] There is no evidence as to the market value of second hand rags. Any attempt by me to determine the market value of an unspecified bundle of second hand rags would be no more than a guess or speculation. On the evidence that was before the Magistrate, I am not persuaded on the balance of probabilities that the rags on the Vessel when it was repossessed had any market value, so I make no allowance for damages.

1. I have dealt with this aspect of the Conversion Claim at [787] - [801]. I find that the Magistrate did not err is dismissing this aspect of the Conversion Claim.

1. Mr McWhirter did not give evidence-in-chief that there was no 24 volt heavy duty battery charger on the Vessel when it was repossessed. However, he was not cross-examined to the effect that there was a 24 volt heavy duty battery charger on the Vessel the property of Breaksea when it was repossessed. Whilst this is unsatisfactory, the end position is that Mr Black's evidence that there was a 24 volt heavy duty battery charger the property of Breaksea on the Vessel when it was repossessed was not challenged, so this fact must be taken as uncontested testimony. By in effect making a finding contrary to this uncontested testimony, the Magistrate made an error of fact.
2. Because the testimony on Mr Black was uncontested, this does not fall into the class of factual error identified at [549] in which I am not in a position to make my own finding of fact. Accordingly, I find that Breaksea has proven on the balance of probabilities that there was a 24 volt heavy duty battery charger belonging to it on the Vessel when it was repossessed which the Respondents have not offered to return.
3. Breaksea is entitled to damages for this conversion. As set out at [903], the measure is the market value of the particular chattel at the date of conversion. The invoice quote attached to Mr Black's statement is to the effect was a new 24 volt heavy duty battery charger cost $695.20 in January 2015.[799] There is no evidence as to the market value of a second hand 24 volt heavy duty battery charger. Any attempt by me to determine the market value of a second hand 24 volt heavy duty battery charger would be no more than a guess or speculation. On the evidence that was before the Magistrate, I am not persuaded on the balance of probabilities that the 24 volt heavy duty battery charger on the Vessel when it was repossessed had any market value, so I make no allowance for damages.

1. In summary, I find that the Magistrate did not err in dismissing the Conversion claim insofar as it related to the:

1. I find that the Magistrate erred in dismissing the Conversion Claim insofar as it related to the Genset, and assess damages at $13,200.
2. I find that the Magistrate erred in dismissing the Conversion Claim insofar as it related to the following Disputed Items, but Breaksea has not proven on the balance of probabilities that it has suffered any loss by reason of the conversion:

(a) 24 volt stop solenoid for m/engine 12 volt inverter/converter

14. Did the Magistrate err in awarding the Respondents interest on the damages it was awarded?

1. In the Amended Counterclaim, the Respondents claimed interest of the amount of damaged claimed at the rate of 6% per annum from 1 January 2016 until judgment pursuant to MCCPA s 12.

1. In the Third Decision, the Magistrate allowed the Respondents interest at the rate of 6% per annum from the date on which the relevant payment was due (section 5.3). The following amounts were ordered to be paid ([345]):

(a) $4,491.88 on the unpaid instalment of purchase price that was due on or by 30 September 2015;

(b) $4,716.98 on the unpaid instalment of purchase price that was due on or by 31 December 2015;

(c) $6,585.14 on the unpaid licence fees for the fishing units; and

1. The issue of interest is addressed in ground of appeal 15:

2 AUGUST 2022: Error of law in entering judgment for interest on counterclaim for loss of bargain damages and costs of the proceedings when no entitlement

1. The learned Magistrate erred in law and fact on 2 August 2022 in awarding the Respondents' interest and costs of the proceedings (AB 1513) based upon the above findings without regard to the Reserve Bank cash rate which did not exceed half the awarded interest rate of 6% overcompensating the Respondents, which was not considered by the learned Magistrate after a further delay of 27 months since the initial judgment on 13 May 2020 resulting in an error of law.

1. Consistent with ground 15, counsel for Breaksea identified the error made by the Magistrate as being to award interest at the rate of 6% 'when the interest rate did not exceed 3% which overcompensated the Respondents'. This is said to have been on the basis of 'assertive statements which do not deal with the evidence'.[800]
2. The reference to delay is reiterated in submissions. This appears to be an argument that the delay between what I refer to as the First Decision and the Third Decision should not have been included in the time for which interest ran.
3. Counsel for Breaksea also made the point that in the event that Breaksea is successful in its appeal, the order for interest and costs, being consequential, should fall away.

1. Counsel for the Respondents submitted that:[801]

(b) in any event, there was no evidence as to the Reserve Bank interest rate;

(c) the Respondents' sought interest at the rate of 6% in the counterclaim;

(d) the appropriate rate of interest was not in dispute in the trial;

(e) delay is not ordinarily a reason to refuse or reduce interest;

(f) the delay in the final judgment cannot be laid at the feet of the Respondents; and

(g) the Respondents are entitled to interest as Breaksea had the use of the money throughout this period and they had been kept out of its use, and should be compensated accordingly.

1. At the outset I observe that the position adopted by Breaksea in the Appeal was somewhat disingenuous. This is because in the Claim it claimed interest at the rate of 6%. So Breaksea's position is that if it was entitled to damages, it should be awarded interest at the rate of 6%, but if the Respondents were entitled to damages and were awarded interest, it should only be at the rate of 3%.
2. Given the substantive findings I have made, the Magistrate's decision on interest must, as a consequence, be set aside. I return to the issue of interest on the amounts I would award following the Appeal in Part 15. However, I do consider it appropriate to determine whether the Magistrate's decision on interest was in error as it raises an important point on which a precent may well be useful. It is also appropriate that I deal with this issue in case this decision is the subject of appellate consideration.
3. The power of a Magistrate to award pre-judgment interest is found in MCCPA s 12 in the following terms:
   1. Pre-judgment interest may be awarded

(1) If the Court gives judgment in favour of a claim for money, including a debt, damages or the value of goods, it may include in the judgment sum either -

(a) interest, at a rate decided by the Court, on the whole or a part of the money for the whole or a part of the period that -

(i) begins on the date when the cause of action arose; and

(a) authorise the giving of interest on interest; or

(b) apply in relation to any general damages in respect of pain and suffering or the loss of enjoyment or of the amenities of life awarded in relation to personal injury (including any disease or impairment of a person's physical or mental condition) or the death of a person; or

(c) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or

(d) affect the damages recoverable for the dishonour of a bill of exchange.

1. MCCPA s 12 is in substantially identical terms to s 32 SCA, save that it includes the power to award a lump sum of money in lieu of interest calculated in the usual manner. The authorities on SCA s 32 are, in my view, apposite to MCCPA s 12.
2. The power to award pre-judgment interest 'has a compensatory function and allows the court to do more complete justice between the parties'.[802] 'It enables the court to rectify the unfairness and injustice to a wronged party in being kept out of money - thus ensuring that such a person receives a current equivalent in money's worth of his or her past loss'.[803]
3. There is no entitlement to interest or statutory presumption in favour of interest.[804] Rather, the power to award interest is discretionary.[805] This discretion is to be exercised judicially and in accordance with legal principle.[806] There are five aspects to the discretion in MCCPA s12(1):[807]

(c) the amount on which the interest is to accrue (which may be part only of the judgment);

(e) whether to award a lump sum in lieu of interest calculated in the traditional manner.

1. As the power to award interest is discretionary, the principles in House[808] govern any appeal on the issue of interest.[809] This point was not addressed by either counsel in written or oral submissions. It is sufficient to determine the appeal based on the most general of these principles, being that error may be inferred if the decision under appeal is 'upon the facts is unreasonable or plainly unjust'.[810]
2. Turning first to the discretion as to the rate of interest, in Rayney the Court of Appeal made the following observation which is pertinent:[811]

In general terms, the onus is on the plaintiff to establish the facts necessary for the exercise of discretion under s 32 of the Supreme Court Act ... However, when computing interest for the purposes of s 32 of Supreme Court Act, the court may use, as a guide, the rate of interest prescribed from time to time for the purpose of s 8 of the Civil Judgments Enforcement Act 2004 (WA): O 36 r 20 of the Rules of the Supreme Court 1971 (WA). The current prescribed rate of interest is 6% per annum ...

1. RSC O 36 r 20 provides:
   1. Interest for purposes of Act s. 32

When computing interest for the purposes of section 32 of the Act, subject to any evidence adduced, the Court may use, as a guide, the rate of interest prescribed from time to time for the purposes of section 8 of the Civil Judgments Enforcement Act 2004.

1. There is no equivalent provision to RSC O 36 r 20 in the MCCPA or the MCCPR.
2. At all material times the rate prescribed in for the purpose of CJEA s 8 has been 6%.
3. In Grincelis v House Kirby J observed of an equivalent provision to RSC O 36 r 20 in the Australian Capital Territory that in the absence of any evidence about rates of interest, and litigants being on notice of the court's practice, there would ordinarily be no reason do to other than apply those rates.[812]
4. In the present case, neither party led any evidence on the issue of interest. Although Breaksea asserts that the rate was set by the Magistrate without regard to the Reserve Bank cash rates, it did not put those rates into evidence before the court. In this context, the decision of the Magistrate to follow the Supreme Court practice set out in RSC O 36 r 20, which practice also applies in the District Court[813], and award pre-judgment interest by refence to the post-judgment interest rate, was an orthodox application of well-established principles. It was certainly not unreasonable or plainly unjust.
5. As to the discretion going to the duration of time over which interest should run in an action involving a breach of contract, in Rio Tinto McLure JA, with whom Pullin JA agreed, observed:[814]

The general rule is that damages are assessed as at the date the cause of action accrued which in contract is the time of breach ... Thus, interest is to compensation plaintiff's for the detriment they suffer by the delay in receiving damages to which they theoretically became entitled at the time of breach ...

1. This is what the Magistrate did in the present case. Aside from the issue of delay in the judgment being finalised, the Magistrate's exercise of discretion was again an orthodox application of well-established principles. In no way can it be said to be unreasonable or plainly unjust.
2. As to the issue of delay, counsel for the Respondents is quite correct to say that the delay to final judgment cannot be laid at their feet. Rather, given the history I have outlined in Part 3 in my view, there were three operative reasons for the delay. The first is the listing and management exigencies of the Magistrate's court including the relocation of the Magistrate from Perth to Carnarvon. I add that these listing and management exigencies were exacerbated by the limitations placed on court operations due to COVID 19 during most of this period. The second is the quite inappropriate insistence by counsel for Breaksea that the Magistrate defer commencing drafting of his decision until there had been a further hearing for oral closing submissions to be made (see my comments at [325]). The third is the difficulty which the Magistrate had in getting the parties, in particular Breaksea, to comply with the orders made at the conclusion of the trial, which I have again referred to in some detail in Part 3. Nothing in this context made the exercise of discretion by the Magistrate unreasonable or plainly unjust.
3. Breaksea has not established this ground of appeal.

1. In summary my findings are that the Magistrate:

(a) erred in dismissing the Purchase Price Claim, and should have allowed it in the amount of $48,225.50 (Part 7);

(b) erred in allowing the Purchase Price Counterclaim (Part 7);

(c) erred in allowing the Unit Fees Counterclaim (Part 8);

(d) did not err in allowing the MFL Fees Counterclaim, which should stand in the amount of $1,880.55, though judgment should only have been given in favour of Pretar (Part 9);

(e) save for the issue of GST, did not err in allowing the Repair Costs Counterclaim, which should stand in the amount of $37,235.73, though judgment should only have been given in favour of Pretar (Part 10);

(f) erred in dismissing the Insurance Claim, and should have allowed against Pretar in the amount of $1,470.02 (Part 11);

(g) did not err in not allowing Breaksea to bring the Unconsumed Units Claim (Part 12); and

(h) erred in dismissing the Conversion Claim in its entirety, and should have allowed it in part in the amount of $13,200 against both Pretar and Mr McWhirter (Part 13).

1. Based on the principles set out in section 6.2, I am in as good a position as the Magistrate to determine interest on the amounts I have awarded and should do so.
2. Applying the principles set out in section 14.6 each of Breaksea and Pretar is entitled to interest at the rate of 6% per annum from the date on which the cause of action accrued until the date of this judgment. I gave some consideration to leaving the interest calculations in place for the MFL Fees Counterclaim, which could then have been the subject of post judgment interest (at the same rate) pursuant to CJEA s 8. However, given that I am going to net out the amounts owed, this did not seem appropriate.
3. Interest will be calculated to the date in which the decision is handed down, being 22 September 2023.
4. Interest should be calculated on each claim prior to considering the issue of a set-off.[815]

1. The Purchase Price Claim accrued on the date on which Pretar repossessed the Vessel, 1 January 2016. The period from 1 January 2016 to 22 September 2023 is 403 weeks.
2. I allow interest at the rate of 6% per annum, being $55.64 per week ($48,225.50 x 0.06 / 52). The interest totals $22,422.92 ($55.64 x 403). The total damages comes to $70,648.42 ($48,225.50 + $22,422.92).

1. The MFL Fees Counterclaim accrued on the date on which Pretar repossessed the Vessel, 1 January 2016. The period from 1 January 2016 to 22 September 2023 is 403 weeks.
2. I allow interest at the rate of 6% per annum, being $2.17 per week ($1,880.55 x 0.06 / 52). The interest totals $874.51 ($2.17 x 403). The total damages come to $2,755.06 ($1,880.55 + $874.51).

1. The Repair Costs Counterclaim accrued on the date on which Pretar repossessed the Vessel, 1 January 2016. The period from 1 January 2016 to 22 September 2023 is 403 weeks.
2. I allow interest at the rate of 6% per annum, being $42.96 per week ($37,235.73 x 0.06 / 52). The interest totals $17,312.88 ($42.96 x 403). The total damages comes to $54,548.61 ($37,235.73 + $17,312.88).

1. The Insurance Claim accrued on the date on which Pretar repossessed the Vessel, 1 January 2016. The period from 1 January 2016 to 22 September 2023 is 403 weeks.
2. I allow interest at the rate of 6% per annum, being $1.70 per week $1,470.02, x 0.06 / 52). The interest totals $685.10 ($1.70 x 403). The total damages comes to $2,155.12 ($1,470.02 + $685.10).

1. The cause of action in conversion is not complete until demand was made and not complied with. Demand was first made in the letters dated 6 January 2016. The Magistrates Court action was commenced on 21 January 2016. I find this to be the date by which it was clear that the Genset was not going to be returned, and thus the cause of action accrued. The period from 21 January 2016 to 22 September 2023 is 400 weeks.
2. I allow interest at the rate of 6% per annum, being $15.23 per week ($13,200 x 0.06 / 52). The interest totals $6,092 ($15.23 x 400). The total damages comes to $19,292 ($13,200 + $6,092).

1. The net result of the calculations in section 15.2 is that:

(a) Breaksea is entitled to judgment against Pretar in the amount of $92,095.54 ($70,648.42 + $2,155.12 + $19,292):

(b) Pretar is entitled to judgment against Breakea in the amount of $57,303.67 ($2,755.06 + $54,548.61); and

(c) Breaksea is entitled to judgment against Mr McWhirter personally in the amount of $19,292.

1. The amount in (b) must be set off against in the amount in (a), leaving a net judgment against Pretar in the amount of $34,791.87 ($92,095.54 - $57,303.67).[816]

1. In the Appeal, I am able to make an order as to the costs in the Magistrates Court.[817] At the hearing of the Appeal, I flagged with counsel that I would defer the issue of costs, and invite submissions once I had determined the substantive appeal.[818] In order to facilitate focussed submissions, I set out some preliminary views on the issue.
2. The power to order costs in the Magistrates Court is contained in MCCPA s 25, which relevantly provides:
   1. Costs

(1) The Court may order a party to a case to pay the whole or a part of another party's costs in the case.

(2) A successful party is entitled to an order under subsection (1) that the whole of its costs in the case be paid by the unsuccessful party, unless the Court considers there is good reason not to make such an order ...

...

(7) The amount of any costs to be paid is to be determined by the Court unless the parties concerned agree on the amount.

1. The default position in MCCPA s 25(2) reflects the default position more generally.[819]
2. The difficulty in the present case is that, as a result of the Appeal:

(a) Breaksea was successful in its claim in the amount of $92,095.54 against Pretar and $19,292 against Mr McWhirter; and

(b) Pretar was successful in its counterclaim against Breaksea in the amount of $57,303.67.

1. There is no specific rule in the MCCPA dealing with the scenario in which one party is successful on the claim and the other on the counterclaim. The MCCPR does address the issue in r 87 and r 89. However, these provisions are of no assistance as they related to an earlier regime in which there were different costs determinations applicable in respect of different judgment sums.[820]
2. A common order made in this scenario is that the plaintiff is to pay the costs of the action and the defendant is to pay the costs of the counterclaim.[821] This would be the outcome if MCCPA s 25(2) was directly applied. Where an order of that kind is made in an action to which the RSC applies, in the absence of a special order, that order is given effect to in the following manner:[822]

where there is judgment for one party on the claim with costs and judgment for the other party on the counterclaim with costs, the costs shall be assessed as if each party had succeeded in an independent action and charges which cover without discrimination, work referable to the claim and work referable to the counterclaim, shall be divided between the claim and the counterclaim in the proportion in which the work covered by such charge is properly attributable to the claim and to the counterclaim; ...

1. And more generally, and again in the absence of a special order:[823]

where the statement of claim contains more than one cause of action and the plaintiff succeeds on one or more causes of action and the defendant succeeds on another or others, costs shall be allowed to the plaintiff on the cause or causes of action on which he succeeds and to the defendant on that or those on which he succeeds, in the same manner as if separate actions had been brought;

999 The power in MCCPA s 25(2) - 'unless the Court considers there is good reason not to make such an order' - is discretionary. At a general level, the discretion in relation to costs must be exercised so as to achieve what is fair and just between the parties according to the circumstances of the particular case.[824] The court 'should carefully examine the realities of the case in hand, and should so frame its order that justice shall, so far as costs are concerned, be nearly as possible done between the parties'.[825]

1. There are six factors which are relevant to the exercise of the discretion.
2. The first is that this is not a case in which I am considering a departure from the default rule in MCCPA s 25(2) on the basis that a successful party should only recover a portion of its costs as it was unsuccessful in respect of certain discrete issues.[826] Rather, this is a case in which each party is, on the face of it, entitled to an order for costs pursuant to MCCPA s 25(2).
3. The second is that this is not a case in which the claim and the counterclaim raise essentially different issues. Rather, the issues are very much 'interlocked' and 'inexorably mixed', so much so that, in my view, the default position would not give a just result.[827] This is particularly evident in the analysis in Part 7 and my findings in relation to the fishing nets ([787] - [801]).
4. The third is that, although the claim and counterclaim arise out of the same transaction, this is not a case in which the counterclaim is properly characterised as only being in the nature of a defence.[828]
5. The fourth is that, in my view, Breaksea and the Respondents were in essence equally successful. To the extent that Breaksea was entitled to a higher measure of damages in the net result, it is relevant that it was the party who wrongfully terminated the Sale Contract, leading to the commencement of both the claim and the counterclaim.
6. The fifth factor is that, in my view, it is not possible to disaggregate the costs of the claim and the counterclaim either on the basis set out in RSC O 66 r 2(b) or more generally. For example, the witness statements of Mr Black and Mr McWhirter each deal with matters relevant to the claim and the counterclaim as they arise in the course of the overall narrative.
7. The sixth is that, even if a disaggregation exercise along the lines of that set out in RSC O 66 r 2(b) was conducted, the costs to the parties to undertake the assessment exercise (pursuant to MCCPR pt 15 div 1) are, in my view, likely to be out of all proportion to the benefit ultimately gained by one or other party in the net result. 'The principle of proportionality should be borne steadfastly in mind by all the civil courts of the state'.[829] The costs to the parties of this litigation will inevitably be wholly disproportionate to the amounts in dispute and the ultimate net judgment given. The manner in which the litigation was conducted before the Magistrate bore no resemblance to the amounts in dispute. This is acutely demonstrated by the fact that it took a 299 page District Court decision to canvass all the issues raised by the parties, only to arrive at a net position in the order of $35,000. It is not appropriate that I add to this disfunction by requiring the parties to go through what would inevitably be a protracted assessment of costs process.
8. The following observations of Beech J in Merilla Pty Ltd v Commonwealth of Australia are apposite to the present case:[830]

In my opinion, when the result of the action is considered in the framework of the competing claims and counterclaims, an order that there be no order as to costs, so that each party bears its own costs, reflects the substantial justice of the case.

The Owners' claims and the Commonwealth's counterclaim were both substantial components of the trial; each occupied a significant part of the preparation and time at trial. None of the Owners' pleaded claims were upheld. The Owners succeeded in resisting the counterclaim.

In the circumstances of this case, it would be open to make a costs order in favour of the Owners in relation to the counterclaim, and a costs order in favour of the Commonwealth on the Owners' claims. However, in my view, the justice of the case is better served by an order that deals with all of the costs globally, without requiring a line to be drawn between the costs of the action and those of the counterclaim. All of the parties' various causes of action arise out of the one course of dealing between them, involving the same set of facts. The making of a single order in respect of the whole of the costs of the action and the counterclaim seems to me to be conducive to doing substantial justice. Further, a single order avoids the difficulties which would arise upon taxation in apportioning particular parts of the parties' costs as between the action and the counterclaim. I think there would be scope for considerable disagreement between the parties in that process.

Approaching the question of costs globally invites attention to the question of which party, if any, was successful in the action as a whole, including the counterclaim...

His Honour went on to hold, in effect, that each party was equally unsuccessful, and ordered that there be no costs on the action, including the counterclaim. In the present case, Breaksea and the Respondents were in essence equally successful, but the reasoning applies equally.

1008 These factors taken together lead me to the preliminary view that there is 'good reason' to depart from the default position set out in MCCPA s 25(2). My preliminary view is that the appropriate costs order is that there be no order as to the costs of the claim and no order as to the costs of the counterclaim. Orders in these terms achieve what I consider to be a fair and just outcome between the parties according to the circumstances of this particular case.[831] However, I will hear from counsel on this issue.

1. As to the costs of the Appeal, I also need to hear from the parties. However, again with the intent of receiving focussed submissions, it is appropriate that I set out the principles and express some preliminary views.
2. Costs of actions and proceedings in the District Court are to 'be paid by or apportioned between the parties in such manner as the District Court judge directs'.[832] In default of such a direction, the costs shall 'abide the event'.[833] Aside from the default position, the court's discretion is unconfined in the sense that there are 'no positive indication of the considerations upon which the court is to determine by whom and to what extent costs are to be paid'.[834] The discretion is very wide.[835] However, it must be exercised judicially, that is, in accordance with established principles and factors directly connected with the litigation, and not arbitrarily, capriciously or so as to frustrate the legislative intent.[836] It must be exercised so as to achieve what is fair and just between the parties according to the circumstances of the particular case.[837] Nevertheless, 'practices or guidelines have developed, one of which is that, generally speaking, a wholly successful party should receive his or her costs unless good reason is shown to the contrary'.[838] What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case.[839]
3. The starting point is thus to determine which party was successful in the Appeal.
4. Breaksea was successful:

(a) in setting aside the Magistrate's decision to allow the Purchase Price Counterclaim and dismiss the Purchase Price Claim;

(b) in setting aside the Magistrate's decision to dismiss the Insurance Claim;

(d) in setting aside the Magistrate's decision to allow the Unit Fees Counterclaim.

(a) the Magistrate's decision that it was Breaksea who repudiated the Sale Contract;

(b) the Magistrate's decision in relation to the Repair Costs Counterclaim;

(c) the bulk of the Magistrate's decision on the Conversion Claim;

(d) the Magistrate's decision in relation to the MFL Fees Counterclaim;

(e) the Magistrate's decision not to allow Breaksea to bring the Unconsumed Units Claim (which would have failed on its merits in any event); and

1. The principle set out in RSC O 66 r 2(a) (quoted at [998]) would apply to this appeal by way of analogy.
2. The following observations of the Court of Appeal in Bowen are also relevant in an appeal context:[840]

It is clear that while the court has a broad discretion as to costs, generally costs will follow the event ... It is incumbent upon the unsuccessful party to satisfy the court that there are good reasons why it should not pay the other party's costs ...

The court may, in the exercise of its discretion, order that a successful party recover only a portion of its costs where that party has been unsuccessful in respect of certain discrete issues. But that should not be done as a matter of course. To embark as a general practice upon an analysis of which party was successful on each issue, or necessarily to deprive a successful party of some portion of its costs if it has lost on a particular issue, would be likely to add further uncertainty and complexity to the outcome of litigation, derogate from the prospect of settlement, and oblige the court to hear lengthy and frequent arguments in relation to costs as an additional burden on its resources and the costs of the parties ... Litigation is time-consuming, expensive and burdensome enough already.

In addition, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case ...

This, of course, assumes that one party can readily be identified as having been successful in the appeal.

1. Looking at the reality of the circumstances involved in the case, in my view, Breaksea and the Respondents were equally successful in the Appeal. As with the costs in the Magistrates Court, to the extent that Breaksea was entitled to a higher measure of damages in the net result, it is relevant that it was the party who wrongfully terminated the Sale Contract, something it argued against strenuously, but unsuccessfully, in the appeal.
2. As with the position in the Magistrates Court, the issues involved were so inexorably interlinked that it is not possible to disaggregate the costs on which each party was successful.
3. For these reasons, my preliminary view is that there should be no order as to the costs of the Appeal.
4. I also note that there is a need to deal with the money paid into court by way of security for costs.[841]

1. In order to give effect to what I have summarised in this part, the following orders appear appropriate:
   1. The Appellant have leave to appeal from the decision of the Magistrate on 29 March 2022.
   2. The orders made in the Magistrates Court on 13 May 2020, 29 March 2022 and 2 August 2022 be set aside.
   3. There be judgment in the Magistrates Court for the Appellant against:

(a) the First Respondent in the amount of $34,791.87; and

(b) the Second Respondent in the amount of $19,292.

1. Any party wishing to be heard on the issue of the costs of the proceedings in the Magistrates Court and/ or the costs of the appeal, by 29 September 2023, file and serve:

(a) a minute of proposed orders;

(b) any affidavit in support; and

(c) submissions in support of the orders sought of not more than 5 pages.

1. If no party files and serves any documents pursuant to order 4 there be no order as to the costs of the proceedings in the Magistrates Court and there be no order as to the costs of the appeal.
2. There be liberty to apply as to the disposition of the moneys paid into court by the Appellant.
3. I will hear from counsel as to the final form of the orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[7] AB 177 - AB 178 (Exhibit 6); AB 490 (Exhibit 16).

[8] AB 179 - AB 180 (Exhibit 6); AB 491 (Exhibit 17).

[9] AB 139, AB 637 (opening submissions).

[10] AB 139 - AB 141, AB 177 - AB 180, AB 493 - AB 494.

[11] AB 637, AB 644 (opening submissions), AB 353, AB 761.

[12] AB, 637, AB 644. The statement is at AB 131 - AB 170.

[22] AB 128 - AB 130 (Exhibit 5); also AB 172 - AB 173.

[30] AB 171, AB 800, AB 862. A point later accepted by counsel for Breaksea: AB 832, see also AB 838.

[33] AB 808 - AB 814. See also AB 913 - AB 914.

[72] AB 352 (being Annexure O to Mr Black's witness statement). See also: AB 931.

[77] AB 161. The advertisement is at AB 353 - AB 354.

[78] AB 353. (Annexure P to Mr Black's statement).

[86] A copy of the notice is at AB 355.

[100] AB 906 - AB 907, AB 1008, AB 1012.

[121] AB 856 - AB 861, referring to the invoices at AB 242, AB 244, AB 245.

[125] AB 63 - AB 130, AB 724 - AB 753. I have not included in the summary of Mr Black Snr's evidence of instances of inadmissible hearsay evidence which is not relevant to the determination of the issues in dispute in the appeal.

[144] AB 402 - AB 409 (Exhibit 10), AB 839 - AB 855.

[150] AB 493, AB 1102 - AB 1103, AB 592 - AB 593 (Exhibit 19); AB 1202 - AB 1203.

[151] AB 490 (Exhibit 16), AB 491 (Exhibit 17), AB 1103 - AB 1104.

[189] AB 1131 - AB 1147 (referring to AB 217 - AB 250 and following, being Annexure J to Mr Black's statement), AB 1152.

[190] AB 531 - AB 548. See also: AB 1135.

[195] AB 1073 - AB 1075, AB 487 (Exhibit 15), AB 1155, AB 1165 - AB 1167.

[198] AB 1073 - AB 1075, AB 487 (Exhibit 15).

[206] Based on Mr Black's evidence at AB 761.

[208] AB 499 - AB 500. Mr McWhirter annexed a copy of this advertisement to his statement of intended evidence (SCM 10), however, in the end it was not tendered: AB 929 - AB 930.

[240] AB 504. The invoices he refers to are at AB 586 and AB 587.

[254] AB 1263 - AB 1264, AB 1266 - AB 1268.

[256] AB 1241 - AB 1244, AB 1259 - AB 1271, in particular AB 1266, AB 1268, AB 1275 - AB 1276.

[288] Not in the AB. Extracted by the court from the Magistrates Court file.

[296] See for example: AB 1383 - AB 1384.

[299] Not in the AB. Extracted by the court from the Magistrates Court file. Though see AB 1364 - AB 1365, AB 1384 - AB 1385.

[301] AB 1521 - AB 1542, AB 1342 - AB 1365.

[304] Not in the AB. Extracted by the court from the Magistrates Court file. Referred to by the Magistrate at AB 1387 - AB 1388.

1. [332] See for example: Legal Profession (Magistrates Court)(Civil) Report 2022 (WA), par 4(c)(1).

[333] Seymour v Jaeger [No 2] [2020] WADC 15 [37] (Prior DCJ) (Seymour); Titelius v Crowe [2017] WADC 116 [68] (Staude DCJ) (Titelius); Legal Profession (Magistrates Court)(Civil) Report 2022 (WA), par 4(c)(1).

[335] See for example: AB 1374 - AB 1378.

[336] For example, reflected in Magistrates Court Civil Procedure Act 2004 (WA) (MCCPA) s 32(3)(b).

[337] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54] (French CJ). See also [88] (Gummow & Bell JJ), [141] - 146] (Heydon J). See also: Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin & Murphy JJA agreed).

[338] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [112] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[339] Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104 [7] - [8] (judgment of the court) (Tey).

[341] Dare v Pulham (1982) 148 CLR 658, 664 (judgment of the court) (Dare).

[342] Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 296 - 297 (Dawson J) (Banque); Vale v Sutherland [2009] HCA 26; (2009) 237 CLR 638 [41] (judgment of the court); AWAP SGT 26 Investment Ltd v CN 2000 Holdings Ltd [2020] WASCA 74 [189] (judgment of the court) (AWAP).

[344] Breaksea Fishing Company Pty Ltd v Pretar Pty Ltd [2020] WADC 116 [11] (Breaksea).

[345] When quoting from each document, I have not included the revisions marks from amendments unless that is necessary for the determination of the issues in the appeal.

[354] The written opening submissions are not in the AB.

[375] AB 34 - AB 35 (Defence, pars 10 - 13).

[376] AB 1319 - AB 1321; AB 1530 - AB 1534.

[378] AB 25 (Claim, pars 15(1) and 15(2)).

[405] AB 36 - AB 37 (Defence, par 14).

[411] AB 1324 - AB 1325, AB 1350 - AB 1352.

[416] AB 35 (Defence, par 11.1); AB 1345.

[417] AB 1342 - AB 1343, AB 1539 - AB 1540.

[418] AB 53 (Defence to Counterclaim, par 4(a)).

[420] AB 31, AB 36 (Defence, pars 7, 11.5).

[424] AB 48 (Defence to Counterclaim, par 1(a)).

[425] AB 51 (Defence to Counterclaim, par 1(k)).

[428] AB 36, AB 43 (Defence, par 11.5, Counterclaim, pars 1 and 2).

[430] AB 51 (Defence to Counterclaim, par 1(i)).

[431] AB 43 (Counterclaim, pars 1 - 3).

[432] AB 43 - AB 45 (Counterclaim pars 3.1 - 3.19).

[433] AB 52 (Defence to Counterclaim, pars 3 and 4).

[438] AB 45 - AB 46 (Counterclaim, par 4.1).

[440] AB 48 (Defence to Counterclaim, par 1(a)).

[445] AB 49 - AB 50 (Defence to Counterclaim, pars 1(g), 4(b)).

[446] AB 53 (Defence to Counterclaim, par 4(b)).

[447] AB 1337 (grammar as per original).

[452] AB 53 (Defence to Counterclaim, par 4(c)).

[458] AB 1307 - AB 1310; AB 1338 - AB 1340; AB 1353 - AB 1354; AB 1362 - AB 1363.

[464] Enviro Constructions Australia Pty Ltd v Mandurah Homes Pty Ltd [2013] WADC 163 [16] - [20] (Registrar Kingsley).

[518] Which I will refer to as 'Appellant's Submissions'.

[519] Which I will refer to as 'Respondents' Submissions'.

[522] District Court Rules 2005 (WA) (DCR) r 50(1).

[523] Smart v Power [2019] WASCA 106 [100] (judgment of the court) (Smart).

[524] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] (Gleeson CJ, Gaudron & Hayne JJ) (Coal and Allied).

[525] Nugawela v Australian Health Practitioner Agency [2023] WASCA 37 [11] (judgement of the court); Avsar v Binning [2009] WASCA 219 [37] (Owen JA, with whom Miller & Newnes JJA agreed).

[526] Coal and Allied [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23] (Gaudron, McHugh, Gummow & Hayne JJ) (Allesch); Saunders v The Public Trustee [2015] WASCA 203 [84] (Mitchell J, with whom Buss JA & Beech J agreed).

[527] Allesch [23]; Marks v Coles Supermarkets [2021] WASCA 176 [124] (judgment of the court) (Marks); Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130 [460] (judgment of the court) (Binningup).

[528] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 (2016) 331 ALR 550 [43] (judgment of the court) (Robinson Helicopter); Australian Securities and Investments Commission v Kobelt [2019] HCA 18 [47] (Kiefel CJ & Bell J); Marks [127]; Smart [101].

[529] Smart [100]; Jones v Darkan Hotel [2014] WASCA 133 at [31] (judgment of the court) (Jones).

[531] Pilbara Iron Ore Pty Ltd v Ammon [2020] WASCA 92 [63] (judgment of the court) (Pilbara Iron); Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80 [172] (judgment of the court).

[532] Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 [128] (judgment of the court) (Ammon).

[533] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [154] (Edelman J; see also [35] - [50](Gaegler J) (SZVFW); Ammon [128].

[534] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 - 367 (Deane J); Defendi v Szigligeti [2019] WASCA 115 [44] - [54] (judgment of the court) (Defendi).

[537] Chester v WA Country Health Service [2022] WASCA 57 [145] (judgment of the court) (Chester).

[539] Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112] (judgment of the court) (references omitted). See also: Browne v Browne [2019] WASCA 1 [80] (judgment of the court).

[540] Manonai v Burns [2011] WASCA 165 [53], [56] (Hall J with whom Pullin & Murphy JJA agreed).

[541] Strahan v Brennan [2014] WASC 190 [90] - [92] (Martin CJ) (references omitted). Applied in Lacco v Director of Public Prosecutions (WA) [2022] WASC 168 [71] (Mitchell J).

[543] Robinson Helicopter [43] (references omitted); Marks [127].

[544] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551 (Gibbs ACJ, Jacobs & Murphy JJ**)** (Warren); Marks [128].

[545] Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993 [55] (Bell, Gageler, Nettle & Edelman JJ) (references omitted); Marks [129].

[546] Smart [102] - [105] (references omitted). The passage from Fox v Percy [2003] HCA 22 was at [23]. The reference to the New South Wales Court of Appeal was to Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 [116] - [118] (judgment of the court).

[547] McKessar v John Durham Pascoe as trustee for Samson Street Supernnauation Fund [2020] WASCA 106 [76] (judgment of the court) (reference omitted).

[549] Jones [31]; Badran v Public Transport Authority (WA) [2017] WASCA 28 [65] (judgment of the court).

[550] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ) (House); (SZVFW) [38]; Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [184] - [185], [204], [241] (judgment of the court) (Lawrence); Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44 [54] - [56] (judgment of the court). As to the when a decision will be discretionary, see generally: SZVFW [35] - [50].

[551] Lawrence [184] - [185], [204], [241].

[552] Allesch [23]; Rayney v The State of Western Australia [No 4] [2022] WASCA 44 [225] (judgment of the court) (Rayney).

[553] Robinson Helicopter [43].

[555] Brown v Churchill [2006] WASCA 17; (2006) 31 WAR 246 [39] - [40] (references omitted) (Pullin JA, with whom Steytler P agreed); Chester [153].

[556] Chester [19], see also [145].

[557] Appellant's submissions, par 117; ts 111.

[558] Respondents' submissions, par 13; ts 206 - ts 208.

[559] See for example; ts 104, ts 117.

[560] Appellant's submissions, par 70.

[561] See generally: Appellant's submission, pars 68(a), 71.

[562] Appellant's submissions, par 67(a). See also par 75.

[563] Appellant's submissions, par 68(a), citing McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457 (470) (McDonald) and Moffet Farms v Pauls Services & Sales Pty Ltd (1991) 7 SR (WA) 351, 355 (Moffet).

[564] Appellant's submissions, pars 79 - 80.

[565] Appellant's submissions, pars 81, 96.

[566] Appellant's submissions, par 82.

[567] Appellant's submissions, par 83.

[568] Appellant's submissions, pars 84 and 85.

[569] Appellant's submission, pars 86 - 88, 92 - 95.

[570] Appellant's submissions, pars 89 - 91.

[571] Appellant's submissions, pars 97 - 98.

[572] Appellant's submissions, pars 99.

[573] Appellant's submissions, pars 100 - 101.

[574] Respondents' submissions, par 15.

[575] Respondents' submissions, par 17.

[576] Respondents' submissions, pars 50 - 57.

[577] Respondents' submission, pars 58 - 64.

[578] Respondents' submissions, pars 65 - 66.

[579] Respondents' submissions, pars 69 - 71.

[580] Respondents' submissions, pars 76 - 80.

[581] Respondents' submissions, par 81.

[582] Respondents' submissions, par 82.

[583] Respondents' submissions, pars 25 - 27.

[584] Respondents' submissions, par 30.

[585] Respondents' submissions, pars 25 - 27.

[586] Respondents' submissions, pars 31 - 33.

[587] Respondents' submissions, pars 129 - 131.

[588] Yara Australia Pty Ltd v Oswal [No 2] [2013] WASCA 187 [149] (McLure P).

[589] See generally the authorities collated in Ellis v East Metropolitan Health Service [2018] WADC 36 [805] (Gething DCJ).

[590] Trimat Holdings Ptd Ltd v Investment Club Pty Ltd [No 2] [2021] WADC 26 [26], [62] (Gething DCJ), affirmed in Trimat Holdings Pty Ltd v Investment Club Pty Ltd [2022] WASCA 29 [147] (judgment of the court) (Trimat).

[591] See for example: Baltic Shipping Company Ltd v Dillon [1993] HCA 4; (1993) 176 CLR 344, 352 (Mason CJ) (Baltic Shipping).

[592] Appellant's submissions, par 113(b).

[593] CA & Associates Pty Ltd v Fini Group Pty Ltd [2020] WASCA 31 [51] - [54] (Buss P & Vaughan JA) (references omitted) (CA & Associates). See also: Gold Valley Iron Pty Ltd (in liq) v OPS Screening & Crushing Equipment Pty Ltd [2022] WASCA 134 [116], [118] (Buss P & Murphy JA).

[594] McDonald (476) - (479) (Dixon J, with whom Rich & McTiernan JJ agreed) (reference omitted).

[595] JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA 16 [58] (Murphy JA with whom Pullin JA & Newnes JA agreed); Elkhoury v Farrow Mortgage Services Pty Ltd (in liq) [1993] FCA 264; (1993) 114 ALR 541; Euphoric Pty Ltd v Ryledar Pty Ltd [2006] NSWSC 2 [199] (affirmed in Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; Matthews v Cool Or Cosy Pty Ltd [2004] WASCA 114 [62] (EM Heenan J). See also Seddon N and Bigwood R, Cheshire & Fifoot Law of Contract (11th Australian ed, 2017) [21.38].

[596] Holland v Wiltshire [1954] HCA 42; (1954) 90 CLR 409, 416 (Dixon CJ) (Holland); Striker Resources NL v Australian Goldfields NL (in liq) [2006] WASC 153 [171] (EM Heenan J) (Striker Resources).

[597] See generally: Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 [10] (Kiefel CJ, Bell and Keane JJ), [165] (Nettle, Gordon & Edelman JJ) (Mann); Striker Resources [171].

[598] See also: Mann [11] - [13]; [165]; Ailakis v Olivero (No 2) [2014] WASCA 127; (2014) 100 ACSR 524 [113] - [114] (Martin CJ with whom Buss JJA agreed); Luxer Holdings Pty Ltd v Glentham Pty Ltd [2007] WASCA 209 [32] - [33] (Buss JA with whom Wheeler JA agreed) [134] - [136] (EM Heenan AJA) (Luxer Holdings).

[599] Lep Air Services Ltd v Rolloswin Investments Ltd [1973] AC 331, 350 (Lep Air Services), a passaged approved in Mann [12].

[600] Dixon J makes it clear that the principles extend to the sale of goods: McDonald (475) - (476).

[601] See also: McDonald (468) (Rich J), (470) - (471) (Starke J); Du Buisson Perrine v Chan [2016] WASCA 18 (Du Buisson Perrine); OPR WA Pty Ltd v Marron [2016] WASC 395 [22] (Strk AM); Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 3] [2010] WASC 141 [320] (Murphy J).

[602] See also: Baltic Shipping (352) (Mason CJ), 389 (McHugh J); Re Sanders Constructions Pty Ltd [1969] Qd R 29, 39; Ownit Homes Pty Ltd v Batchelor (1983) 2 Qd R 124, 134; Rushcutters Bay Developments Pty Ltd v Dragon Asset Investment Pty Ltd (No 2) [2017] NSWSC 866; Du Buisson Perrine [26].

[603] See also: McDonald (468) (Rich J); Du Buisson Perrine [26], [190]; Cowan v Stanhill Properties (1967) VLR 461; Coates v Sarich [1964] WAR 2.

[604] Lep Air Services [335]; Luxer Holdings [134] - [136] (Em Heenan). See for example: Holland.

[606] Moffet (354) (Hammond DCJ).

[609] Dies v British and International Mining & Finance Corporation Ltd [1939] 1 KB 724, 744 (Staple J).

[612] Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21; (1976) 136 CLR 444, 450 (Ogle).

[614] Baltic Shipping (352) - (353).

[615] Baltic Shipping (389), (391) (citations omitted).

[616]Mann [110], [166], [102], [105]; Equuscorp Pty Ltd (Formerly Equus Financial Services Ltd) v Haxton [2012] HCA 7; (2012) 246 CLR 498 [29] - [34] (French CJ, Crennan & Kiefel JJ), [134] (Heydon J) (Equuscorp); AWAP [176].

[617] Equuscorp [32] - [34].

[618] AWAP [177], citing: Equuscorp [29] - [34], [134]; Baltic Shipping (350) - (351), (375) - (379), (389) - (391); Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516 [16] (Gleeson CJ, Gaudron & Hayne JJ), [104] (Gummow J). See also: Mann [168].

[620] Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1989) 166 CLR 623, 647 (Brennan J) (Laurinda). See also: 658 (Deane & Dawson JJ); Armada Balnaves Pte Ltd v Woodside Energy Julimar Pty Ltd [2022] WASCA 69 [510] (Buss P & Murphy JA, with whom Vaughan JA generally agreed - though note [934] factual inability to perform) (Armada).

[621] See for example: ts 114, ts 117.

[622] Armada [508] - [518] (references omitted). The citation of the last quote is: Union Eagle Ltd v Golden Achievement Ltd [1997] UKPC 5; [1997] AC 514, 518.

[624] Armada [509], citing Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 [44] (Gleeson CJ, Gummow, Heydon & Crennan JJ); Laurinda (659).

[626] Australian Woollen Mills Pty Ltd v The Commonwealth [1954] HCA 20; (1954) 92 CLR 424, 457 (judgment of the court).

[627] Partridge v Crittenden [1968] 2 All ER 421, 424 (Ashworth J with whom Lord Parker CJ & Blain J agreed).

[630] See for example: Foran v Wight [1989] HCA 51; (1989) 168 CLR 385, 402 (Mason CJ), 451 (Dawson J) (Foran); Love v Simmons [2016] WASCA 176 [41] - [43] (reasons of the court) (Love); Mirabela Nickel Ltd (in liq) (Receivers and Managers Appointed) v Mining Standards International Pty Ltd [No 5] [2023] WASC 62 [574] (Hill J); Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd as Trustee for Golden Asset Pty Ltd [2012] WASC 443 [195] (Edelman J).

[632] Webb v Tang [2021] WASC 344 [164] (Quinlan CJ).

[633] Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596, 6607 (Mason J, with whom Barwick CJ, Gibbs J, Stephen J & Aickin J agreed); Binningup [406]; Bell Group NV (in liq) v Insurance Commission of Western Australia [2017] WASCA 229 [92] (judgement of the court). See generally: Cheshire & Fifoot [10.41], [21.33].

[634] Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199 [287] - [290] (Allsop CJ, with whom Besanko & Middleton JJ agreed) (references omitted); Mirvac (WA) Pty Ltd v Binningup Nominees Pty Ltd [2020] WASC 28 [686] (Archer J). See generally; Cheshire & Fiftoot [10.43] - [14.46], [21.34].

[638] Mann [196]; Armada [516].

[639] Becker Group Ltd v Motion Picture Co of Australia Ltd [2004] FCA 630 [85] - [86] (Sackville J); Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359, 377 - 378 (Dixon J).

[640] Armada [515]; Shevill v The Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620, 633 (Wilson J).

[642] Appellant's submissions, pars 15, 29.

[643] Respondents' submissions, par 40.

[644] Respondents' submissions, par 41.

[647] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 346 (Mason J) (Codelfa).

[650] AB 490 - AB 491 (Exhibits 16 & 17).

1. [651] Appellant's submissions, par 113(c).

[652] Respondents' submissions, pars 41, 132.

[657] AB 1301, AB 1360; ts 125, ts 146 - ts 147.

[663] Respondents' submissions, par 138.

[664] Appellant's submissions, par 106(b).

[665] Appellant's submissions, par 106(e).

[666] Appellant's submissions, par 106(d).

[667] Appellant's submissions, par 106(a).

[668] Appellant's submissions, par 106(a).

[669] Appellant's submissions, pars 102 - 105.

[670] Appellant's submissions, par 106(c).

[671] Respondents' submissions, par 111.

[672] Respondents' submissions, pars 112 - 113.

[673] Respondents' submissions, pars 115 - 116.

[674] Respondents' submissions, pars 117 - 118.

[675] Respondents' submissions, pars 134 - 136.

[676] Respondents' submissions, pars 134 - 136.

[681] BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266, 283 (Privy Council). See for example: Pilbara Iron [113] - [119]; Recce Pharmaceuticals Ltd v Ian David Brown [2022] WASCA 66 [96] (judgment of the court) (Recce).

[683] Codelfa 346. See also: Shone v Davies [2012] WASCA 83 [56] (Murphy JA, with whom Martin CJ & Buss JA agreed) (Shone).

[684] AB 514 (language and grammar from original).

[685] Contrast: Pilbara Iron [114].

[690] Nudrill Pty Ltd v La Rosa [2010] WASCA 158 [16] (Murphy JA with whom Buss JA & McLure P agreed); Gerrard v Slamar [2004] WASCA 253 [18] - [19] (EM Heenan J with whom Steytler J & Le Miere J agreed); Strange Investments (WA) Pty Ltd v Coretrack Ltd [2014] WASC 281 [138] - [139] (Pritchard J).

[692] Hutton v Meston [2004] WASCA 178 [17] (McLure J, with whom Murray & Templeman JJ agreed).

[693] Singh v Atombrook Ltd [1989] 1 All ER 385, 390 (Kerr LJ, with whom Sir John Megaw agreed).

[694] Banque (297). See also: **Dare (**664); Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan & Dawson JJ).

[695] Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 17) [ 2018] WASC 8 [23] (Kenneth Martin J).

[696] The Commonwealth of Australia v Verwayen [1990] HCA 39; (1990) 170 CLR 394 (498) (McHugh J); Borg v Northern Rivers Finance Pty Ltd [2003] QSC 376 [30] (Mackenzie J).

[697] 1110 Hay Pty Ltd as trustee for The Hay Street Trust v Metso Minerals (Australia) Ltd [No 2] [2018] WASC 227 [32] (Derrick J) (1110 Hay).

[700] See generally: AB 1086 - AB 1093.

[704] The Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, 80 (Mason CJ & Dawson J), 99 (Brennan J), 118 (Deane J), 137 - 138 (Toohey J) (Amann Aviation); Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65 [91] (Newnes JA) (Motium).

[705] Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd [1968] HCA 64; (1968) 120 CLR 516, 523 (Barwick CJ, McTiernan & Menzies JJ); Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38; (1998) 192 CLR 603 [22], [27] (McHugh J) (Unity Insurance Brokers); Motium [84] (Newnes JA), [128] (Murphy JA); Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98 [282] (Buss JA) (Australian Goldfields).

[706] Unity Insurance Brokers [99]; Motium [91]; Australian Goldfields [42].

[707] Robinson v Harman [1848] EngR 135; (1848) 1 Exch 850, 855; [1848] EngR 135; (1848) 154 ER 363, 365 (Parke B); Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 83 ALJR 390 [13] (judgment of the court); Motium [69]; Australian Goldfields [276].

[709] Australian Goldfields [276].

1. [711] Australian Goldfields [276]; Amann Aviation (116).

[712] Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351, 355 - 356 (Mason CJ), 367 (Wilson, Toohey & Gaudron JJ), 371 (Brennan J), 380 (Deane J); Hungerfords v Walker [1989] HCA 8; (1989) 171 CLR 125, 146 (Mason CJ, Wilson J).

[713] Netline Pty Ltd v QAV Pty Ltd [2022] WASCA 131 [40] - [42] (judgment of the court) (Netline).

[714] See for example: Smart [93] - [99], [107] - [112].

[715] Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 [117] (Ipp JA, with whom Mason P & Tobias JA agreed).

[716] Van Der Velde v Halloran [2011] WASCA 252 [114] - [116] (judgment of the court).

[717] Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (judgment of the court); Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1 [36] (Gleeson CJ & Heydon J); KND v The State of Western Australia [2017] WASCA 36 [37] (Buss P, with whom Mazza & Mitchell JJA agreed); Aquitania Investments Pty Ltd atf The Elizabeth McKay Trust t/as Aqua Pump & Irrigation v Glenn Patrick Lucassen t/as Kool Temp Refrigeration and Air Conditioning Services [No 2] [2022] WADC 39 [95] (Gething DCJ) (Aquitania Investments).

[720] Appellant's submissions, par 117; ts 84.

[724] See the helpful summary of the GST regime in H2 Migration & Education Pty Ltd v Gu [2023] WASC 199 [88] (Seaward J).

[725] See generally: Gagner Pty Ltd v Canturi Corporation Pty Ltd [2009] NSWCA 413; (2009) 236 FLR 401 [146] - [151] (Campbell JA (with whom Macfarlan JA & Sackville AJA agreed) (Gagner); Millington v Waste Wise Environmental Pty Ltd [2015] VSC 167 [26] - [37] (Croft J).

[727] See also: Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 11] [2013] WASC 92 [31] (Edelman J).

[732] Appellant's submissions, par 106(d).

[737] Zuvela v Geiger [2007] WASCA 138 [39] (EM Heenan AJA, with whom Wheeler & Buss JJA agreed).

[738] Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613, 619 - 620 (judgment of the court).

[744] Ground of appeal 12(b), with references to documentary evidence.

[755] Appellant's submissions, par 67(c).

[756] Appellant's submissions, par 67(c).

[758] Appellant's submissions, pars 59 - 60.

[759] Appellant's submissions, pars 61 - 66.

[762] AB 145 - AB 147, AB 811, AB 911 - AB 912.

[764] AB 1301 - AB 1302 (Breaksea written closing), AB 1356 (Breaksea oral closing), AB 1318, AB 1323 (Respondents' written closing), AB 1348 - AB 1350 (Respondents' oral closing).

[765] See for example: Trimat [86].

[766] See for example: City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd [1961] HCA 53; (1961) 106 CLR 477.

[767] A framework accepted by counsel for the respondents on the appeal: ts 240. See also: ts 105.

[769] Warren (551) - (553); Ammon [127].

[770] Warren (552); Ammon [128].

[771] Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2005] NSWSC 951 [10] - [20] (White J).

[774] Respondents' submissions, pars 43 - 45.

[775] Appellant's submissions, par 67(d).

[776] Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204, 229 (Dixon J) (Penfold Wines); Tallott v City of Stirling (No 2) [2015] WASC 483 [14] (Chaney J) (Tallott), affirmed Tallott v City of Stirling [2017] WASCA 126 [252] - [253] (judgment of the court); Finesky Holdings Pty Ltd v Minister for Transport for Western Australia [2001] WASC 87 [162] (Roberts-Smith J); West Australian Newspapers Ltd v Bond [2009] WASCA 127 [40] (Buss JA with whom Wheeler & Owen JJA agreed) (Bond).

[777] Wellington City Council v Singh [1971] NZLR 1025, 1027 (Quilliam J).

[778] Tallott [14]; Penfolds Wines (224) - (229).

[779] Roddan v Trevor [2003] WASC 234 [41] (Master Newnes).

[780] Respondents' submissions, par 47.

[781] Appellant's submissions, par 77.

[783] Butler v Egg and The Egg Pulp Marketing Board [1966] HCA 38; (1966) 114 CLR 185, 191 (Taylor & Owen JJ), (192) (Menzies J) (Butler); Chep Australia Limited v Bunnings Group Limited [2010] NSWSC 301 [224] - [226] (McDougall J).

[785] Western Credits Pty Ltd v Dragan Motors Pty Ltd [1973] WAR 184, 191 (Wickham J).

[786] Bennett v Goodwin [2005] NSWSC 930; (2005) 62 ATR 515 [16] - [17] (Campbell J); Reynolds v The State of Western Australia [No 2] [2013] WADC 176 (Herron DCJ) [483].

[788] East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147 [387] (judgment of the court).

[789] Appellant's submissions, par 102.

[790] Respondents' submissions, pars 46 and 48.

[800] Appellant's submissions, pars 114 - 116.

[801] Respondents' submissions, pars 140 - 143.

[802] Lawrence [150], also [59] - [60].

[803] Lawrence [150], also [60]; Rayney [169].

[805] Lawrence [59] - [60], [115] - [116].

[806] Rayney [168]; Lawrence [147].

[807] In contrast in SCA s 32 where there only four aspects to the discretions: Lawrence [59] - [60].

[809] Lawrence [184], [204], [241]; Rio Tinto Exploration Pty Ltd v Graphite Holdings Pty Ltd [2007] WASCA 276 [95] (Buss JA) (Rio Tinto).

[811] Rayney [170] (references omitted). There is a footnote reference to s 8(1)(a) of the Civil Judgments Enforcement Act 2004 (WA) (CJEA) which provides that interest on an unpaid judgment sum is to be paid at the rate prescribed by the regulations. Regulation 4 of the Civil Judgments Enforcement Regulations 2005 (WA) provides that the rate of interest for the purposes of s 8(1)(a) of the CJEA is 6% per annum.

[812] Grincelis v House [2000] HCA 42; (2000) 201 CLR 321 [21] (Kirby J), cited in Rayney [170].

[814] Rio Tinto [47] (references omitted).

[815] Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 3] [2009] WASC 52 [152] (EM Heenan J) (Clambake).

[816] See generally, and where necessary by analogy: RSC O 20 r 17; Aquitania Investments [199]; Siah v Wong [2021] WASC 19 [759] - [765] (Smith J); Clambake [152].

[817] MCCPA s 43(7)(e).

[819] Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [5] (judgment of the court) (Bowen); RSC O 66 r 1(1); DCA s 64(1).

[820] Craft Decor Pty Ltd v Oteri [2012] WASCA 46 [70] (Hall J, with whom Murphy JA agreed).

[821] Smith v Madden [1946] HCA 19; (1946) 73 CLR 129, 132 -133 (Dixon J).

[824] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 558 (Dawson J) (Latoudis).

[825] Godden v Alford [1960] WAR 235 at 237 (judgment of the court) (Godden).

[826] See generally: Bowen [5].

[829] Defendi v Eden Hill Plasterers [2008] WASCA 269 [7] (Martin CJ).

[830] Merilla Pty Ltd v Commonwealth of Australia [2015] WASC 309 (S) [11] - [14] (Beech J) (Merilla).

[831] Latoudis (558); Godden (237).

[832] DCA s 64(1). See also: DCR r 59(1).

[833] DCA s 64(1).

[834] Hughes v St Barbara Ltd [2011] WASCA 234 (S) [5] (reasons of the court) (Hughes).

[835] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [48] (judgment of the court) (Strzelecki).

Naidoo v Williamson [2008] WASCA 179 ; (2008) 37 WAR 516 [39] (Steytler P, with whom Pullin JA & Murray AJA agreed); Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 (S) [14] (Herron DCJ).

[836] Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [24] (judgment of the court); Strzelecki [48].

[837] Latoudis (558); Godden (237).

[839] Strzelecki [48] - [52].

[840] Bowen [5] - [7] (references omitted).