_Cashmere Bay Pty Ltd v Hastings Deering

_Cashmere Bay Pty Ltd v Hastings Deering - [2011] QSC 32 - QSC 2011 case summary — Zoe

[44]

[38] In his evidence, Browning recalled being sent by Fordham out to have a look at an oil leak on the vessel. He said that the only people present on that occasion were Nilsson, McKinnon and himself. Browning said he went into the engine compartment and saw a slight hairline crack where the timing bolt hole was. He assumed it related back to the original work he had done, and described the oil leak as "very fine". He denied that it would leave a big patch on the floor. He said he told Nilsson that there was slight hairline crack, and that it could be fixed with the application of a specific metal product. Nilsson responded, however, that he wanted it fixed properly. Browning said, in effect, that the whole engine would have to be removed because of the work involved in replacing a front timing cover. He also explained that it would be necessary to remove the port engine in order to then remove the starboard engine. He described measuring the engine and the doorway, and recalled that there was about 100 millimetres difference. He said that he, McKinnon and Nilsson looked at the doorway and the aft panel. He said: "For what you'd need, you'd just have to trim the panel ... and then you could get the engine out". Browning said that there was no discussion about this, and that Nilsson said that there was a man who could "probably cut that out and he does the fibreglass and the woodwork at that place". He said that Nilsson gave him Cox's name and number. Browning said that Nilsson tried to telephone Cox but there was no answer so he, McKinnon and Nilsson finished up then and he said to Nilsson that once the panel had been removed to phone the defendant and Browning would come back and remove the engines. He said that both engines were to be taken back to Hastings Deering because Nilsson was "talking about low power at this stage and he was saying that he was getting black smoke, and he wanted to have them, you know, checked". Browning told Nilsson that the best way to check the engines was by a "dyno test" (i.e. testing on a dynamometer). Browning said that Nilsson responded that if the starboard engine was going to be tested because of the crack and oil leak, then the defendant may as well do both.

[51]

[44] Nilsson said that he telephoned Fordham in February and asked how things were going with the engines and whether they had been put on the dynamometer to find out what the problem was with excess smoke and overheating. Fordham told him that the engines had not been put on the dynamometer, that Fordham had gone to the pump shop and checked with the people who worked on the injector pumps, that he had ascertained that the setting on the injector pumps were correct and that the matter had been fixed. When Nilsson asked as to what he meant by "fixed", Fordham told him that the timing cover case had been fixed and the injector pumps had been tested and were working correctly. Fordham told him that there was no need for a dynamometer test and that if Nilsson wanted this done he would have to pay $1,350 per engine. Nilsson told Fordham that he would not proceed with the dynamometer testing if Nilsson had to pay for it. Nilsson said that when he was advised that the gearboxes were ready to be reassembled, McKinnon advised him to put the gearboxes on the engines and then put the units on the dynamometer to make sure the engines were working properly and that the gearboxes were not leaking. Nilsson said he telephoned Fordham and said that he was prepared to have dynamometer tests done because he wanted to put the gearboxes on. Fordham told him that the price had then risen to $2,500. There was some discussion about this jump in price. Fordham also quoted $3,000 per engine for them to be repainted. Nilsson said he discussed these quotes with McKinnon and also made inquiries with other Hastings Deering and Caterpillar dealers. He then phoned Fordham back and said that he would agree to pay $2,500 for dynamometer testing on each of the engines, but wanted McKinnon present at the time of the testing to make sure that everything was correct. Nilsson said that Fordham initially agreed to this, but when McKinnon later contacted Fordham to make the necessary arrangements, McKinnon was refused access to the Hastings Deering workshop for the test. Nilsson said that by this time he had "had enough" of Fordham and the defendant, so he asked McKinnon for advice, and McKinnon recommended that the engines be taken to DA.MET for the dynamometer testing. Nilsson telephoned Fordham and told him that the engines were to be transported to DA.MET for testing.

[231]

[127] The defendant contended that the plaintiff had failed properly to prove the costs to rectify the vessel. Counsel for the defendant referred to the judgment of McColl JA in McCrohon v Harith [2010] NSWCA 67, and particularly the authorities referred to by Her Honour at [117]-[127] in support of the proposition that the Court should not resort to speculation when conducting an assessment of damages. That is undoubtedly correct, but it does not relieve the Court from the task of making the best assessment (sometimes estimate) of damages on the basis of the admissible evidence which is led. I do not accept the defendant's submission that the plaintiff, by Mr Clough's evidence, was inviting me to form a "guesstimate" of the claimed costs of rectification. True it is that Mr Clough acknowledged that further engineering analysis was required in the course of rectification, but, as is apparent from the passages I have quoted above, it is also clear that he not only expressly took this into account in forming his opinion, but the expected cost impact of that further engineering advice (once the veneers are removed) is likely to be minimal. Mr Clough also made allowance for the cost of obtaining that engineering advice. It seems to me that his evidence sufficiently addressed this issue. It is also not correct that Mr Clough did not identify the deficiencies which needed to be rectified with any precision. While Mr Clough did not descend into the detail which Mr Behan set out his report, Mr Behan's report was written on a completely different basis, and with a view to identifying matters which he would describe as wear and tear. A complaint by the defendant that there was no "meaningful scope of works" also does not stand up against the evidence of Mr Clough. Mr Clough had the quotes from two reputable repairers. It is clear from his report that he examined those quotes critically to ensure that they encompassed the rectification works which, in Mr Clough's opinion, needed to be undertaken. He specifically rejected work which was not related to the reinstatement works.

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