Hogan v BPW Transpec [2013] VSC 249

Supreme Court of Victoria|2013-05-16|Before: ELLIOTT J

CONTRACT - supply and installation of crane and tray top - failure of crane to perform to specifications - crane defects rectified by defendant - tray top short in length - whether any loss claimed was suffered - expert evidence - failure to establish loss claimed - failure to mitigate loss - Goods Act 1958 (Vic) ss 19, 61 - whether implied terms negatived by contract - interpretation of exclusion clauses.

1 This case concerns the supply and installation of a crane manufactured by HMF, model number 2003-K3 D ("the Crane"). It also concerns the supply and installation of a tray top ("the Tray Top"). Both the Crane and the Tray Top were installed on a new truck, namely a DAF 2008 FAD CF85 truck ("the DAF Truck").

2 Problems were experienced with the DAF Truck and the Crane. There were also issues with the Tray Top. Claims have been made by reason of these events. For the reasons that follow, those claims cannot succeed.

3 The plaintiff, Mervyn Hogan ("Hogan"), has worked in the crane operations industry for many years. At the time he gave his evidence he was 69 years of age. Since its incorporation in around 1999, Hogan worked for the former plaintiff, Juliana Enterprises Pty Ltd ("Juliana"). He conducted the day-to-day operations of Juliana.

4 His wife, Frances Foster ("Foster"), handled the finance aspects of Juliana's business. Foster was the sole director of Juliana. Hogan explained that this was because he had been bankrupted on 2 previous occasions. Juliana commenced this proceeding on 9 September 2010. It was placed into liquidation on 5 June 2012.

5 On 6 July 2012 a deed of assignment was executed between Juliana and Hogan. The recitals to the deed included the fact that Hogan had incurred costs in the pursuit of the proceeding to date and had guaranteed all of the debts of Juliana arising from and out of the conduct of the proceeding. For the sum of $100, together with a promise to pay 10% of the net proceeds of any amounts recovered by Hogan in this proceeding, Juliana assigned the choses in action the subject of the deed.

6 Hogan was duly substituted as the plaintiff. There was no dispute that the deed was effective in giving Hogan the right to pursue the causes of action he pursued at trial.

7 The defendant, BPW Transpec Pty Ltd ("BPW"), was a supplier of truck and trailer equipment. It also supplied parts for the road transport industry. At all relevant times up to 31 December 2008, BPW imported trucks and trailer-mounted cranes pursuant to a distribution agreement with HMF, a company based in Denmark.

8 In the first quarter of the 2009 calendar year West Trans Service (Vic) Pty Ltd ("West Trans")[1] became the distribution agent for HMF in Australia.

9 Hogan gave evidence that he was "old school", and did business on a handshake unless someone insisted that a contract be put in writing. This, perhaps, explains the absence or sparcity of documentation in relation to a number of aspects of this case.

10 In the time leading up to the events the subject of this proceeding, Juliana had the following trucks:

(1) a "little ACCO International" ("the Little ACCO"), which was contracted to work for a company now known as Austress Freyssinet Pty Ltd ("Freyssinet");

(2) a "double 13 Scania", which was on permanent hire to a company operating out of Clayton;

(3) a Scania with a 12 tonne payload, which was "working full-time" (though the details of that work were not made clear);

11 Hogan said his method of operation was to get a job first, and then to purchase a truck to do the job. He also said he would only buy the truck if he had the job for the life of the finance agreement required to be entered into by Juliana for the purchase of the truck. This approach, he said, meant that Juliana's trucks would then be deployed for a minimum of 40 hours per week. He said this resulted in the trucks operating to approximately 90% capacity.

12 Having said this, Hogan immediately acknowledged in his evidence-in-chief that the purchase of the Big ACCO occurred without such arrangements being in place. Hogan gave examples of the piecemeal work that the Big ACCO had performed. Hogan said that because the other 3 trucks were in full-time work then, as long as the Big ACCO was making enough to cover its way, the other trucks would "hold up".

13 Accordingly, it is plain Hogan was willing to make exceptions to what he said was his method of operation when deciding whether Juliana should purchase a truck.

14 Although the evidence of the timing is not entirely clear, sometime in or around mid 2008 Hogan says he had discussions with Abigroup Contractors Pty Ltd ("Abigroup"). Hogan said those discussions, broadly speaking, were to the effect that if Juliana could provide a truck with a crane capable of lifting concrete barriers which weighed in excess of 4 tonne, then Juliana would be given work on the Monash-Citylink-Westgate upgrade for a period of approximately 1 year. Hogan gave evidence there were also discussions to the effect that Abigroup would provide work thereafter for a further, much longer, period.

15 It was pleaded the total length of the agreement was 6 years. There was no evidence to support this definite period. It was accepted by counsel on behalf of Hogan that the further period was indefinite. To maintain the case for a 6 year agreement, it was suggested that Hogan imposed the 6 year limit himself, consistent with his retirement plans. This gives rise to a serious problem with Hogan's case insofar as it is alleged that Hogan gave specific details of a 6 year agreement at the time he ordered the Crane and the Tray Top. I will return to this.[2]

16 As a result of his discussions with Abigroup, Hogan then made inquiries about the ability to acquire a truck and a crane that were capable of performing the services he says were required by Abigroup. Hogan approached Scania and Volvo, stating he needed a truck with an 8 metre tray on it and a crane mounted to the back of the tray to lift up to 4.5 tonne. He also instructed that the truck needed to turn in a 25 metre turning circle to be legal. Hogan was informed by Scania and Volvo that they could not provide such a truck unless a steerable axle was affixed. This required Juliana to spend an extra $20,000. Hogan was not willing to incur this additional expenditure.

17 Based on a recommendation from his finance broker to the effect that Kenworth would be able to do it, Hogan then approached a person by the name of Russell Bond at Paccar.[3] Hogan said that, upon making the same inquiry of Paccar, he was told that it could be done and it was "not a problem".

18 By a further amended statement of claim ("FASOC"), Hogan alleged BPW agreed with Juliana "[i]n or about September and November 2008" to supply and install the Crane and the Tray Top to the DAF Truck, together with another HMF crane to one of the Scania trucks. In relation to the DAF Truck, Hogan pleaded that in consideration of BPW agreeing to supply and install these items, Juliana agreed to effect payment from a finance company of $95,480 ("the Contract").

19 According to the FASOC, the Contract "constituted oral discussions and written documents". Insofar as the FASOC referred to oral discussions, it alleged that the discussions occurred between Hogan and Philip Caligiuri ("Caligiuri") of BPW.

[Hogan] informed [Caligiuri] that Juliana required [BPW] to supply and install a crane and tray top to the DAF [Truck] to enable the DAF [Truck] and [the Big ACCO] to undertake long term hire agreement works for 6 years for [Abigroup] in respect of the Monash Alliance works for the Monash-Citylink-West Gate Upgrade for 1 year and thereafter works for and on behalf of Abigroup for 5 years ("the Long Term Abigroup Hire Agreement").

21 Then by paragraph 6.3 of the FASOC it was alleged that Hogan represented to Caligiuri that Abigroup required the DAF Truck and the Crane to have a certain performance capacity in order to undertake the Long Term Abigroup Hire Agreement. The performance capacity alleged to have been specifically identified by Hogan was as follows:

6.3.1 A crane with the ability to lift concrete barriers of up to 4½ tonne in weight;

6.3.2 A truck and crane that could lift and carry up to 4 concrete barriers each weighing up to 4½ tonne in weight;

6.3.3 A truck and crane that could lift and carry other heavy goods up to 20 tonne per (sic) metre on an 8 metre tray;

("the Abigroup Specifications").

22 It was also alleged that Caligiuri represented to Hogan that the Crane would be fit for the purpose of undertaking the works required under the Long Term Abigroup Hire Agreement.

23 Insofar as the Contract was said to be in writing, it was said to consist of a quote dated 25 September 2008, a proforma invoice dated 17 October 2008 and a tax invoice dated 13 November 2008, together with an Esanda settlement confirmation dated 19 November 2008.

24 Implied terms were also alleged. Pursuant to s 19 of the Goods Act 1958 (Vic) ("the Goods Act"), it was alleged that the Crane and the installation of the Crane would be fit for purpose and be of merchantable quality.[4] Another implied term pleaded was that the works undertaken would only be done, where reasonably required, by qualified trades people, mechanics and engineers.[5] It was also said to be an implied term that BPW would effect such certification as was required in respect of the Crane installation works by using qualified trades people, mechanics and engineers as was reasonably required for the certification.[6]

25 It was alleged that pursuant to the Contract, BPW supplied and installed the Crane and the Tray Top to the DAF Truck, and that Juliana paid $95,480 (inclusive of GST) for them "through Esanda" on or about 13 November 2008.[7]

26 The allegations in relation to breach of the Contract were set out in paragraphs 12 and 13. In relation to the pleaded express term concerning the Abigroup Specifications, the allegations were as follows:

The Crane as installed to the DAF [Truck] by the defendant breached the express term of the agreement that the DAF [Truck] and Crane be fit for purpose in respect of the Abigroup Specifications.

Particulars

12.1 On or about January 2009 the [Crane] when lifting an empty 20 foot container for Abigroup failed to do so despite the lift being within the parameters of the Abigroup Specifications;

12.2 On or about January 2009 the [Crane] dropped a 3 tonne wire cable coil during a lift for Abigroup despite the lift being within the parameters of the Abigroup Specifications;

("the Abigroup Failures"). (Emphasis added.[8])

27 The more general allegations concerning terms relating to the proper performance of the Crane (alleged to be both express and implied) were as follows:

The Crane as installed to the DAF [Truck] by the defendant breached the express and implied terms of the agreement and/or the implied terms of quality or fitness implied by application of s 19 of the Goods Act 1958 (Vic) as it was:

not fit for purpose; and 2. not of merchantable quality;

Particulars[9]

13.1 Welded joints of medium tensile members had poor bead penetration;

13.2 Crane to chassis mounting base bolt guides were adrift due to incorrect bolt lengths and reinforcement spacers;

13.3 The Crane slew limitation system was inoperative;

13.4 An audible, visible load indicator to warn the crane operator of a load approaching the maximum safe working load was not installed to the Crane;

13.5 The pressure transducer was disconnected and tied off with another fitting being attached to the main boom load holding valve body;

13.6 The pressure transducer was disconnected and tied off with another fitting being attached to the main boom load holding valve body presenting a hydraulic leakage condition with inadequate sealing of the end coupling;

13.7 The outrigger hydraulic hose system was not routed in a merchantable fashion so as to prevent fouling and damage to the hoses;

13.8 The hydraulic service pipe on the left outrigger was deformed with fouling on the vehicle body frame;*

13.9 Oil leak from breather on crane base;*

13.10 Crush blocks able to be moved by hand;*

13.11 Able to lock out slew by lowering crane to main boom level on lower;*

13.12 The hydraulic system was not free of leaks;*

13.13 The crane mounting method was not approved by the chassis manufacturer;*

13.14 The crane mounting method was not approved by the crane manufacturer;*

13.15 The welding did not conform to all relevant Australian standards;

13.16 The mounting bolts were not correctly torqued;*

13.17 The crane software installation was not properly and/or adequately configured and/or installed;*

13.18 The Crane and/or Tray [Top] was attached to the DAF chassis using inappropriate chassis drilling and bolting causing the DAF chassis to be compromised in terms of structural integrity;

13.19 The plaintiff repeats the allegations in paragraphs 12, 12.1 and 12.2.

28 It was also alleged that the works and certifications undertaken by BPW were carried out by persons who were not fit and/or qualified to undertake such works and certifications.[10]

29 It was then alleged that as a consequence of BPW failing to meet the Abigroup Specifications and the Crane having the defects particularised, Abigroup terminated the Long Term Abigroup Hire Agreement between Abigroup and Juliana.[11] This was said to have occurred by a letter dated 19 June 2009.[12]

30 Damages were claimed in the sum of $849,666.20 in respect of the DAF Truck for "the lost opportunity of deriving an income over 6 years" from the Long Term Abigroup Hire Agreement. In addition, it was alleged that work to be performed with the use of the Big ACCO was also the subject of the Long Term Abigroup Hire Agreement. Damages were claimed over a 6 year period in relation to the Big ACCO on a like basis. This was not fully particularised in the FASOC, though an amount of $1,421,550 was identified as the "gross lost opportunity damages".[13] In short, for these damages to be properly the subject of a claim, it was necessary for Hogan to establish the existence of the Long Term Abigroup Hire Agreement.

31 A claim for loss and damage was also made in relation to rectification works said to be required. It was pleaded[14] that rectification works were required in relation to the chassis of the DAF Truck and the Crane (both to be able to meet the Abigroup Specifications and also to "perform works consistent with the Crane manufacturer specifications"). Accordingly, it was only this aspect of the loss claimed that, in part at least, was not dependent upon establishing the existence of the Long Term Abigroup Hire Agreement.

32 Claims were also made for negligent works and for negligent misstatements.[15] There is no need to go through these in any detail. In substance tortious claims were made for the same loss and damage claimed in contract.

33 On or about 26 September 2008 Foster, on behalf of Juliana, executed a credit application form provided by BPW. The credit application form included a director's guarantee, a notice of disclosure and the terms and conditions of sale ("the Terms and Conditions"), each of which was also executed by Foster. It was common ground between the parties that the Terms and Conditions applied to the Contract.

34 As noted above, the Contract was alleged to be oral and written (as well as partly implied).[16]

35 In relation to the written terms, the Contract included the following acknowledgment:

I/We acknowledge that all contracts for the sale of goods by [BPW] to the Customer shall be strictly subject to the following Terms and Conditions as amended by [BPW] from time to time pursuant to Clause 16.

36 The Terms and Conditions referred to in the acknowledgement included the following:

1.1 "Contract" means the contract resulting from this acceptance by [BPW] of an Order in accordance with clause 2.3;

"Loss" means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental;

"Order" means an order placed by an intending Customer with [BPW] for the supply of Goods;

...

2.1 These Terms and Conditions supersede all previous terms and conditions imposed by [BPW].

2.2 Each Order will constitute an offer by the Customer to acquire Goods from [BPW] upon and subject to these Terms and Conditions and any purported qualification of these Terms and Conditions (including any terms and conditions contained in any purchase order or other document of the Customer which are inconsistent with these Terms and Conditions) will be treated as inapplicable and of no effect.

2.3 A contract will be made between [BPW] and the Customer for the sale and purchase of the Goods only if an Order has been made according to clause 2.2 and that Order has been accepted by [BPW], which acceptance may be by delivery of the Goods described in the Order.

...

7.1 [BPW] agrees and acknowledges that the Customer is entitled to all rights and remedies in respect of Goods which the Customer has under the Trade Practices Act 1974 and State and Territory legislation and which cannot be lawfully excluded, restricted or modified. These Terms and Conditions do not purport to, and do not have the effect of, excluding, restricting or modifying the exercise of any such right or remedy or the liability of [BPW] in respect of any such right or remedy.

7.2 Subject always to clause 7.1:

(a) all conditions, warranties and guarantees other than those expressly provided for or referred to in these Terms and Conditions or agreed and confirmed by [BPW] in accordance with these Terms and Conditions are excluded to the fullest extent permitted by law;

(b) [BPW] will not be liable to the Customer for any loss caused directly or indirectly by the Goods or any defect in the Goods or the failure of the Goods to operate in accordance with their specification; and

(c) [BPW] will not be liable for any Loss which results from the supply of or failure to supply the Goods.

7.3 Where [BPW] is permitted by the Trade Practices Act 1974 and similar State and Territory laws to limit its liability for the breach of a condition or warranty which is implied by the Trade Practices Act or similar State and Territory laws, [BPW's] liability is limited to any one or more of the following as determined by [BPW] in its absolute discretion

(a) in the case of any goods any one or more of the following:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the costs of replacing the goods or of acquiring equivalent goods;

(iv) the payment of the costs of having the goods repaired; or

...

7.4 The Customer acknowledges that it has not relied upon any representation made by [BPW] which has not been stated expressly in these Terms and Conditions.

...

7.6 The Customer acknowledges that in purchasing the Goods the Customer relied upon the Customer's own skill and judgment in the selection of the Goods and in the use and result the Customer intended to obtain from the Goods.

7.7 The Customer does not have any rights or remedies in respect of the sale and/or delivery of Goods (including any rights in respect of negligence) other than the rights and remedies expressly provided for in these Terms and Conditions.[17]

37 There was some uncertainty about what precisely was said by BPW to be the subject of the Contract. This gave rise to an issue of the required capacity of the DAF Truck and the Crane.

38 A quotation was sent to Darren Barbary, a person Hogan described as "our finance bloke". This quote, dated 25 September 2008, was not sent to Hogan, who said he had not seen it until after the commencement of this proceeding. The quote described the Crane to be supplied by BPW as follows:

To supply one (1) HMF 2003-K3, 18.5 tonne metre capacity fully hydraulic truck loading crane with a maximum hydraulic reach of 10.8 metres where the capacity is 1,560kgs. A capacity of 4,100kgs. is achieved at a radius of 4.5 metres. Our quoted crane includes ... (Emphasis added.)

39 The price quoted for the supply and fit of the Crane was $75,800 plus GST.

40 This quote also provided for the supply of an 8 metre Tray Top for the price of $11,000 plus GST.

41 An invoice, described as a proforma invoice, was issued by BPW dated 17 October 2008. It described the Crane as a "20 Tonne Metre Capacity Truck Loading Crane fully installed". The prices recorded in this proforma invoice were the same as the previous invoice for both the Crane and the Tray Top.

42 The final invoice was dated 13 November 2008. It described the Crane as a "HMF 20 Tonne Metre Crane".

43 BPW led evidence from Caligiuri. Caligiuri is the sole proprietor of a business known as Hydraulic Crane Services. Prior to commencing that business some time in 2009, he was employed by BPW as, amongst other things, a product specialist for HMF cranes.

44 Caligiuri explained that a proforma invoice was issued by BPW in the usual course so that all paperwork could be done before a proper invoice was sent out. Caligiuri referred to the reference to the "20 Tonne Metre Crane" as the generic term for the model of the Crane. He said in fact that the end result of what was supplied was an 18.5 tonne metre crane.

45 Caligiuri's explanation (which was clearly speculation) for the final invoice referring to a "20 Tonne Metre Crane" was that it was "obviously copied straight from the proforma invoice".

46 I expect that very little turns on this issue for 2 reasons.

47 First, evidence was led on behalf of BPW that an 18.5 Tonne Metre Crane was part of the "20 Tonne Metre Nominal Crane Family". Apparently, it is possible to purchase software, at a cost of around $2,000-$3,000, to increase the capacity of an 18.5 Tonne Metre Crane to a 20 Tonne Metre Crane. This evidence was not challenged in cross-examination.

48 Secondly, when it was put to Hogan that he never complained to BPW that the DAF Truck had a payload capacity less than 18 tonnes,[18] Hogan said that BPW did not have to guarantee Juliana 18 tonnes. He said all BPW had to do was make the Tray Top and put the Crane on it. Suffice to say that it was not part of Hogan's case that he relied upon the contents of any of these invoices at the time they were issued, or thereafter.

49 In BPW's conduct of the case no reliance was placed on the operation of cl 7.4 of the Terms and Conditions. It was not raised in cross-examination or closing submissions. Although the clause was pleaded in the defence, it was also pleaded that the Contract was partly oral. Accordingly, it is not necessary for me to consider what effect, if any, cl 7.4 had on the terms of the Contract.

50 The only 2 persons engaged in contractual negotiations were Hogan and Caligiuri. Hogan said he told Caligiuri that he wanted a crane that could lift an empty 20 foot container weighing 2.2 tonne and also could lift a 4.5 tonne concrete barrier at a distance of 6 metres. Further, he said that he told Caligiuri that he wanted a crane to be able to load 4 concrete barriers onto the Tray Top. The concrete barriers were 4 metres in length.

51 Hogan said he requested each of the matters referred to above because that is what he had agreed to do for Abigroup.

52 Caligiuri categorically denied Hogan had given such specific instructions. Caligiuri said the Crane provided could never have achieved a lift of 4.5 tonne at a distance of 6 metres. He said this was apparent from the specifications in relation to the Crane, which were set out in a brochure that was provided to Hogan at the time of the relevant discussions. Caligiuri said if Hogan had made such requirements known, he would have recommended a larger crane that was capable of achieving such a lift. Caligiuri said he had such a crane available for sale at the time.

53 Having considered all of the evidence carefully, I cannot be satisfied that Hogan was as specific as he suggests when stating his requirements to Caligiuri.

54 The evidence, including contemporaneous objective evidence, militates against acceptance of Hogan's account of the discussions. First, the quote prepared by BPW at the time[19] states a very different, and lesser, capacity.[20]

55 Secondly, BPW was capable of providing a crane with a greater capacity that would meet the alleged requirements. There is no apparent reason why, if it had been sought, BPW would not have offered a crane with the appropriate capacity.

56 Thirdly, the brochure provided by Caligiuri to Hogan at the time of the discussions contained the actual specifications and capacity of the Crane (see also paragraph 63 below).

57 Fourthly, at the time of delivery, the Crane had affixed to it a conspicuous decal. This decal recorded that at a distance of 4.5 metres the capacity of the Crane was only 4.1 tonne, and that at a distance of 6.5 metres the capacity of the Crane was only 2.725 tonne.[21] At no time after the delivery of the DAF Truck, with the Crane installed, did Hogan make any complaint about the fact that the information contained on the decal was inconsistent with what he said he told BPW.[22]

58 Fifthly, for reasons set out below,[23] I am not satisfied Abigroup in fact had the lifting requirements that Hogan says that Abigroup had.

59 Sixthly, under cross-examination, when it was put to Hogan that Hogan could not remember where or when he spoke to Caligiuri, Hogan gave an answer, albeit unresponsive, which was quite inconsistent with the case advanced. Hogan said he spoke to Caligiuri and told Caligiuri "what size crane I wanted and what size tray". He also said he left it up to Caligiuri and others "to finish the thing while I was in Queensland attending to my father-in-law's business because he was dying". This evidence strongly suggests that it was Hogan, not Caligiuri, who specified the size of the crane required.[24]

60 Seventhly, under cross-examination Hogan was taken to a document provided to his expert for the purposes of this proceeding. The document had been produced by the expert pursuant to a subpoena issued by BPW. The instructions to the expert included the following:

Abigroup did not give me any specifications on the barriers to be lifted other than saying that the crane would need to lift concrete barriers weighing up to 4.5 tonne.

In other words, there was nothing in the instruction about the need to lift 4 of them on to the DAF Truck, or that they were required to be lifted to a distance of 6 metres. One would have expected these further matters would have been the subject of the instructions to the expert if in fact Abigroup had provided those specifications to Hogan.

61 I accept the submissions of counsel for Hogan that Caligiuri's evidence of the relevant discussions was vague and his recollection was not specific on a number of matters. But this is not surprising. The events were 4½ years ago. Hogan said he only had one discussion about the details of the Crane with Caligiuri. Caligiuri was attending to the installation of approximately 25 cranes at the time. He also said he was dealing with a large number of sales inquiries at that time.

62 That said, Caligiuri was very clear on 2 things. He said he never heard any mention of Abigroup and there was no discussion about lifting 4 metre concrete barriers onto the DAF Truck. In fact, Caligiuri had no recollection of concrete barriers being discussed at all.

63 Caligiuri said he was given a weight by Hogan, in response to which he gave Hogan a brochure and specifications for the Crane. He said he looked at the brochure with Hogan. He was not challenged on this evidence. It therefore seems highly improbable that Caligiuri and Hogan, 2 persons highly experienced in cranes, looked at the brochure and the relevant specifications of the Crane and both made a mistake as to the capacity of the Crane. Tellingly, Hogan gave no evidence about the provision of the brochure or discussions relating to it.[25]

64 In relation to the container, there was no real dispute that BPW was made aware of the fact that Hogan wanted the DAF Truck and the Crane to lift and carry empty containers. Although Caligiuri could not recall any discussion about this, he readily acknowledged that, as he was asked to install pins on the Tray Top to secure a container, he understood there was an intention that the Crane would be deployed to lift containers onto the Tray Top. He said he knew that an empty container weighed approximately 2.3 tonnes.

65 It follows that BPW knew at the time it agreed to supply the Crane and the Tray Top that a purpose of the purchase by Juliana was to have a crane truck with a capacity to lift empty containers weighing up to 2.3 tonnes. It also follows that BPW knew Juliana wanted to be capable of transporting such containers on the Tray Top.

66 The other aspect of the case concerns the length of the Tray Top. All the documentary evidence corroborates Hogan's account that he told Caligiuri it had to be 8 metres in length. This documentary evidence included a diagram prepared by Caligiuri at the time. Hogan gave evidence, which was not challenged, that the Tray Top was probably 6 inches shorter than 8 metres.

67 Accordingly, there is no issue that the Contract was breached in this regard. However, by reason of other findings I have made,[26] this fact does not entitle Hogan to any relief.

68 Finally, in relation to the discussions between Hogan and Caligiuri, Hogan gave no evidence to support a contention that he told BPW any agreement with Abigroup was for 6 years.

69 A curious aspect of this case was the inability of Hogan to lead cogent evidence as to the existence of an agreement between Juliana and Abigroup.

70 Given BPW was not a party to any of the discussions between Hogan and Abigroup, one might have expected it would have been a relatively straight-forward exercise for Hogan to prove the agreement, and its key terms. However, Hogan fell well short of achieving this.

71 Hogan sought to prove the existence of the agreement with Abigroup by 2 means: first, by oral evidence of his discussions with Abigroup; and, secondly, by reference to a letter from Abigroup dated 19 June 2009.

72 Hogan said his discussions in relation to Juliana's agreement with Abigroup were always with Sandra Chahda, now known as Sandra Deed ("Deed"). This evidence is significant. Although there were introductory discussions with others (to which I refer below[27]), it was the discussions with Deed that were relied upon by Hogan. He said that Deed told him if Hogan could build a truck that would take 4 concrete barriers, lift them on and off a truck, and do it to Abigroup's specifications, there would be a job for Hogan, no problem. (In this context, I took the evidence of there being a job to be a reference to Juliana rather than to Hogan personally.)

73 Hogan said his opportunity to do work for Abigroup arose by reason that he knew Ian Hunter ("Hunter"). Hunter was a foreman at Abigroup. Hogan said he got to know Hunter from doing work on different sites "and one thing and another". Hogan said it was Hunter's suggestion that Juliana consider doing work for Abigroup.

74 As a result of this, Hunter introduced Hogan to another person employed by Abigroup who was introduced to Hogan as "Fletch". Hogan said he only ever knew this person as Fletch and he was another foreman of Abigroup. That person was in fact Ian Fletcher ("Fletcher").

75 In the initial discussions Hogan said that Hunter did most of the talking, and, by the time he met Fletcher, Hogan believed Fletcher "sort of knew what we were looking at".

76 Hogan said that Hunter and Fletcher then introduced him to Deed. During that discussion Hogan said it was explained to Deed what they were thinking of doing and that she said it was a good idea. Hogan explained in "roundabout terms" that he did not know what the price of the truck would be and that he would not be building a truck like that unless he had a long term contract. Hogan said he told Deed it would take around 3 months or a bit longer to build the truck. He said to her once it was built he could come back and discuss it and look over it to make sure it was what Abigroup wanted.

77 When asked by his own counsel about whether Hunter or Fletcher commented on the proposal discussed with Deed, Hogan stated he could not remember whether he was just talking to Deed or whether Fletcher had spoken to Deed. He said he did not know. He observed that the events were a long time back and a lot had happened in the 4½ years.

78 There is no evidence to suggest that the discussions became any more detailed than what is set out above. In particular, there is no suggestion as part of Hogan's case that there was any discussions with Abigroup concerning:

(1) the rate at which Juliana was to charge Abigroup;[28]

(2) the date upon which the contract was to start;[29]

(3) whether or not it was necessary to reduce any contract to writing before it was binding;[30]

(4) the number of days a week Juliana would be engaged;

(5) the number of hours per week Juliana would be engaged;

(6) whether there would be overtime, and if so on what basis;

(7) how long the long term contract was to remain on foot; or

Further, there was no evidence to suggest that Hogan ever took the DAF Truck back to Abigroup after the installation of the Crane and the Tray Top was completed to make sure it was what Abigroup wanted.[31]

79 None of Hunter, Fletcher or Deed were called to give evidence by Hogan. Deed gave evidence as part of BPW's case. No adverse inferences may be properly drawn from the fact that BPW did not call Fletcher. (Hogan seemed to submit they should be drawn.) If anything, one might have expected Hogan to call Fletcher (and Deed) as part of his case in attempting to prove the existence of the alleged Abigroup agreement.

80 Presently, I put to one side the evidence given by Deed, to which I will come to shortly. On Hogan's own evidence it must be concluded that whatever the arrangement was between Juliana and Abigroup, that arrangement was an incomplete agreement and did not give rise to a legally enforceable contract.[32] Of course, it would have been possible for Hogan and Abigroup to have agreed that many of the outstanding matters would have simply been determined by the costs Juliana was required to incur,[33] or unilaterally at the discretion of 1 of the parties.[34] That said, there was simply no evidence to that effect.

81 It is convenient to note at this point that the case advanced by Hogan was put largely on the basis that there was a long term contract in place with Abigroup at the time the alleged failures of the Crane occurred.[35] Relevantly, there was no alternate case put by Juliana that, if in fact a legally binding contract with Abigroup did not exist, there was a lost opportunity to obtain further work (with Abigroup or anyone else) by reason of the failures of the Crane. Accordingly, it is not necessary for me to consider the principles derived from the line of authority commencing with Sellars v Adelaide Petroleum NL[36] concerning the loss of an opportunity to enter into a contract or to obtain further work.

82 Turning to Deed's evidence, she said that she had never met Hogan in person. She said her only discussion with Hogan was over the telephone and that was in relation to the contents of the letter of 19 June 2009.

83 In challenging Deed's evidence about whether or not she had met Hogan, counsel for Hogan provided Deed with a rough sketch of the layout of her office. This sketch had been prepared by Hogan. The sketch also depicted the compound around her office. Deed confirmed that the sketch was substantially accurate.

84 I find that Deed is mistaken about her recollection insofar as she said she had never met Hogan. Deed's role at Abigroup required her to meet with numerous subcontractors. Although Deed looked at Hogan in court and said she did not recognise him, and I accept this was honestly said, it is likely that, with the lapse of over 4 years, Deed has simply forgotten the meeting (and Hogan).

85 The matter does not rest there. The absence of any recollection by Deed of Hogan is probably indicative of the superficial nature of the discussions between Hogan and Deed about any proposed contract with Abigroup. If there had been a detailed discussion with very specific requirements concerning a 6 year contract, as Hogan alleges, it is likely Deed would have remembered it. This is particularly so given that her recollection of events concerning the 19 June 2009 letter was very good.

86 I find that there was no discussion of a contractual nature between Hogan and Deed. Deed gave evidence that in relation to the Monash-Citylink-Westgate upgrade she did not engage any of the crane truck subcontractors. There was no apparent reason why Juliana might have been treated as an exception to this. Further, when the specific allegation was put to Deed, namely that she had a discussion with Hogan about lifting 4 concrete barriers at a time onto a crane truck, her response was "I definitely did not have that conversation with Mr Hogan". I accept this evidence. Deed was an entirely independent witness who had no interest in the outcome of the proceeding.[37]

E.2 Letter from Abigroup to Juliana dated 19 June 2009

88 The relevant contents of the letter are as follows:

In January 2009 the Monash Alliance had arranged for the long term hire of 2 No (sic) Crane Trucks from Juliana Enterprises who had procured the items of Plant for the specific intended uses on the Monash Freeway Widening.

...

The Engineering Report identified the crane assembly as "critically unsafe". Due to this Monash Alliance regretfully had to cancel the long term hire arrangement in place for the 2 crane trucks. The crane trucks would have been on permanently (sic) daily hire for a minimum of 6-12 months with ongoing hire considered for further Abigroup Projects.

The Monash Alliance has withdrawn the hire agreement on the sole basis of the Crane Trucks being unfit for purpose and shown to be "critically unsafe" in the Engineering Report provided by Transport Certification Services on 13 May 2009.[38]

89 The precise manner in which the contents of this letter came about is not clear. Deed said the information was provided to her by Hogan and Fletcher. Which part of the letter was referable to Fletcher was not identified. When it was suggested to Deed by Hogan's counsel that she would not have included in the letter anything unless it was supported by Fletcher, Deed said she could not guarantee that. She said she had no recollection of going back to Fletcher to check the details of the letter after she spoke to Hogan and obtained details from him. Deed candidly stated that she drafted the letter not knowing the full implications of it.

90 There is a conflict in the evidence as to how this letter came about. Hogan insisted that he did not ask Abigroup to send him the letter. Deed stated that Fletcher came to see her and explained there was an issue with Hogan's crane truck and that the Crane had failed. She said Fletcher told her that Hogan was after a letter from Abigroup that explained that, because the Crane had failed, Hogan would not be allowed to work on the site. Deed also said Hogan himself requested a letter from her. She said Hogan told her he needed the letter to be able to go back to the crane company and explain he could no longer work on the site because of the failure.

91 I find that Hogan is mistaken in his recollection about how the letter came to be sent to Juliana. The letter contains specific detail that Hogan must have given Deed,[39] and it seems likely he was doing this for a specific purpose. Moreover, Deed's evidence on this topic was unequivocal. In any event, there seems to be no obvious reason why Abigroup would send a letter such as the one that was sent to Juliana unless it was requested to do so. Certainly no other explanation as to why the letter was sent was proffered by counsel for Hogan. In particular, it was not suggested by Hogan or Deed that any letter was necessary to terminate an existing agreement between Abigroup and Juliana.

92 The letter was put in evidence by Hogan not to establish the terms of the agreement with Abigroup, but rather to establish that an agreement existed.[40]

93 Based on the evidence before me, I have no basis of determining what parts of the letter came from Hogan and what parts came from Fletcher. Deed was not asked the specific question, and therefore the position was left entirely unclear. Given that Hogan gave evidence that he spoke always to Deed about the terms of the agreement with Abigroup,[41] it must necessarily follow that, save for any information that might have been provided by Deed to Fletcher, Fletcher could give to Deed little, if anything, by way of detail as to the terms of the agreement. Accordingly, it is highly likely, and I so find, that insofar as the letter purports to set out the terms of an agreement with Abigroup, those details were provided by Hogan.

94 This gives rise to material difficulties in Hogan's case, as there are a number of statements made in the letter which are inconsistent with the case put by Juliana.[42]

95 First, the date of the agreement is said to be January 2009. This is contrary to the evidence of Hogan that the agreement was struck around June 2008, alternatively some time thereafter when the price of the DAF Truck and the Crane were known (which must have been in or before November 2008, when the DAF Truck, with the Crane installed, was delivered).

96 Secondly, the letter speaks in terms of a long term hire agreement for 2 crane trucks. There is no evidence that there was any discussion whatsoever between Hogan and Abigroup in relation to a second truck. Notwithstanding this, the letter purports to record that both trucks were purchased for the specific intended uses on the Monash Freeway. There is simply no evidence to support this. Indeed, Hogan gave direct evidence to the contrary.[43]

97 Thirdly, the letter refers to a "long term hire arrangement" without specifying the duration of any such arrangement. There is certainly nothing in the letter which would support a contention that the long term hire arrangement was for 6 years or more.

98 Fourthly, the letter speaks in terms of "[permanent] daily hire for a minimum of 6-12 months". Self-evidently, even for this shorter period, the duration of any alleged agreement is unclear. Counsel for Hogan suggested the reference to 6-12 months should be understood as being a reference to the duration of the Monash Alliance work on the Monash Freeway. Again, there is no evidence to support such a contention.

99 Fifthly, the letter suggests that beyond the period of 6-12 months, Juliana would only be entitled to be "considered" for further work with Abigroup. This falls well short of the case being put, which was that there was a legally binding agreement between Juliana and Abigroup for a period of 6 years.

100 In summary, the letter undermines a number of key aspects of Hogan's case. He was responsible for giving the relevant details of the letter in mid 2009. Thus, there can be no satisfactory explanation for the material discrepancies referred to above.

101 There is no doubt that there were some problems with the installation of the Crane by BPW. There was a dispute as to whether there were any problems arising out of the installation of the Tray Top. Further, there are issues arising out of the consequences of any defects with the Crane or the Tray Top.

102 After Hogan experienced difficulties with the Crane in late April and early May 2009 (the details of which I refer to in paragraphs 146 to 153 below), the DAF Truck was transported to Serviceworks for an inspection. Serviceworks issued a condition report on 4 May 2009. That report stated the Crane had been tagged "DO NOT USE" as it was "highly unsafe and does not comply with Australian standards". Serviceworks also prepared a defect report of the same date. This listed various matters as being defects of the Crane.

103 After these reports were received the DAF Truck was taken to a yard in Werribee. The yard was on the premises of Damorange Transport ("Damorange"). Hogan was permitted to leave the DAF Truck at the yard so he did not incur storage charges. It was at this location that the DAF Truck and the Crane were inspected by Transport Certification Services. As noted above,[44] after this inspection a report was prepared and provided to Juliana on or about 13 May 2009.

104 The Crane and the DAF Truck were the subject of a further inspection. This inspection was by BPW and West Trans on 27 May 2009. At that time the DAF Truck was still located at Damorange's premises. The New South Wales branch manager of BPW, Donald Carpenter ("Carpenter"), attended on behalf of BPW. Carpenter was also the manager of HMF Cranes at BPW, a position he had held since 1985. Jim Whittle attended on behalf of West Trans. He was described as the proprietor of West Trans.

105 At trial, Carpenter conceded there were some obvious issues with the Crane. He said:

(1) the welding on the jib assembly was "most untidy";

(4) the mounting pockets had started to come adrift.

Carpenter said he did not have a recollection of any other matters being pointed out to him on that day.

106 Carpenter also said that, having observed the Crane on 27 May 2009, he said words to the effect that the Crane should never have left the workshop in the state that it was in. Precisely what Carpenter was referring to by way of defects to the Crane, when he made this remark at the meeting, was not clear on the evidence.

107 A witness called for Hogan was more extreme in his criticism of the welding. Laurence Splatt ("Splatt") was the sole director of Damorange and had many years of experience in the industry. Splatt described the welding as the worst he had seen in his life. Splatt's evidence as to the state of the DAF Truck and the Crane in May 2009 was not the subject of any cross-examination.

108 Splatt attended the meeting on 27 May 2009. Splatt gave evidence that in May 2009 he observed there were bolts missing from the cross-members of the chassis and that there were holes drilled into the chassis.

109 Another witness called for Hogan, Damorange's head mechanic at the time, corroborated Splatt's evidence. Craig Harrison ("Harrison") was not a qualified mechanical engineer, but was qualified as a diesel and petrol mechanic. He said he had worked on trucks and trailers since he was 18, including spending 11 years looking after 60 trucks and 70 trailers at Damorange.

110 Harrison also attended the meeting on 27 May 2009. He gave more specific evidence in relation to the perceived problems with the holes in the chassis. He said the plates on each side of the chassis, that had been put on to support the Crane, did not line up with the holes that were already drilled in the chassis. Harrison said instead of making the plates fit the holes in the chassis, BPW had just drilled more holes. He suggested this was against the law because it weakened the steel, which could lead to hairline cracks and splitting. The evidence also demonstrated that the container mountings (also referred to as pins), required to affix a container to the DAF Truck, were too big. This issue was not in dispute (but the mountings were the subject of the remedial works referred to below).[45] Harrison also said the rods that held the Crane to the DAF Truck were not big enough.

111 For completeness, I note that Hogan was also present at Damorange on 27 May 2009. Because he said he was upset with the issues concerning the DAF Truck, he did not take an active role in the meeting. The evidence discloses that for the most part Hogan was not privy to the discussions that took place in relation to the state of the DAF Truck and the Crane. There were also others who attended, but they were not called to give evidence, and nothing turns on their presence at this meeting.

Work by West Trans and the state of the DAF Truck and Crane immediately thereafter

112 BPW's position was that although there were certain defects in May 2009, they were capable of being remedied.

113 After the meeting on 27 May 2009, the DAF Truck was sent to West Trans for remedial works. This was done with the agreement of BPW, and at its expense. BPW was invoiced $4,794.90 by West Trans, which it duly paid.

114 The description of the work performed by West Trans included:

Labor (sic) to repair HMF 2000 Crane, mountings & plates.

Labor (sic) to make and fit new cotrol (sic) lever rods.

Labor (sic) to fit Diverter Valve and replace Hydrualic (sic) hoses.

Labor (sic) to repair K2 & K3 Jibs.

None of the work described on the invoice related to the DAF Truck or Tray Top. In other words, all works performed by West Trans were to fix problems with the Crane and its installation.

115 After the remedial works were completed by West Trans, the DAF Truck was made available to VicRoads for assessment. That assessment occurred at the premises of West Trans on 8 July 2009.

116 On 9 July 2009 a VicRoads vehicle assessment signatory scheme approval certificate was issued by a duly authorised assessor. That certificate included the following statement:

I have reviewed the data, calculations, drawings and specifications upon which the vehicle work is based. I inspected the vehicle on: 08/07/2009 at West-Trans Service ... The vehicle work is approved. The vehicle meets the Standards for Registration.

117 Accordingly, the evidence suggests that after the works had been performed by West Trans, the DAF Truck and the Crane were in working order and capable of general use. In relation to the DAF Truck, this view is fortified by a question and answer also contained in the certificate, namely:

Is the attachment of the body capable of supporting the maximum loads imposed by the payload and the body weight at the extreme conditions, while evenly distributing the load throughout the chassis?

The question was answered in the affirmative. The expert evidence led at trial was to the effect that the question and answer referred to above were directed to the structural integrity of the chassis.

118 No evidence of any substance was given by Splatt or Harrison as to their opinion on the state of the DAF Truck after the remedial works had been performed by West Trans. Indeed, when the certificate of 9 July 2009 was put to Harrison, he responded: "I'm telling you what I know. This must have been done after I looked at it."

H. Expert evidence on the DAF Truck and the Crane

119 Expert engineers were called by both parties. Mr John Lambert[46] ("Lambert") was called by Hogan. Andrew Enkelman[47] ("Enkelman") was called by BPW.

120 Four reports were filed and served by the experts. Much of those reports dealt with matters that went to issues beyond those raised at the trial. Further, after I directed that the experts confer before giving their evidence, they were able to agree on all but 1 issue.

121 In light of my factual findings, it is not necessary to refer to each of the matters upon which the experts opined for the purposes of the trial of the proceeding. There are only 3 matters that I refer to presently.

122 First, it was agreed by Lambert and Enkelman that there was nothing about the chassis of the DAF Truck which demonstrated that it was compromised in terms of structural integrity. Accordingly, notwithstanding the views of Hogan (views which I believe he genuinely held), all the objective evidence suggests the chassis of the DAF Truck was structurally sound.[48]

123 Secondly, when the Crane was tested by Lambert in 2011 it was able to perform a lift of 2.944 tonnes at 6.35 metres. This indicated that the Crane was capable of lifting the weights in accordance with the published specifications, and as specified on the decal. The test conducted by Lambert also indicated the alarm was working and that the Crane was correctly calibrated. Accordingly, the only evidence before me strongly suggests the Crane is capable of performing in accordance with the specifications for the Crane (though not, of course, in accordance with what Hogan says he stated the Crane was required to do).

124 Thirdly, the experts expressed their opinions in relation to the likelihood, or even possibility, of the Crane being able to "drop" a load if the capacity of the Crane was exceeded. This evidence was adduced from the experts in light of Hogan's account of the second failure of the Crane (see paragraph 152 below).

125 Lambert stated that as a load was moved out by the Crane, and the pressure of the hydraulic system increased, it would reach a point where back-flow was possible in the hydraulic system. Lambert stated once the back-flow was possible, the load would go to the ground but at a rate he could not determine without knowledge of the hydraulic system at the time.

126 Enkelman said he was in partial agreement with Lambert's evidence. However, he said he could not provide any explanation for a sudden descent of a load once the Crane's capacity had been exceeded. Indeed, Enkelman went so far as to say that a sudden descent of the boom was not possible. He said this was due to the hydraulic system of the Crane. Enkelman also said that there was a remote possibility that a slow descent could accelerate if the operator were to bring the control valve into neutral and a contaminant had entrained in the sealing surface of the pilot-operated check valve, which would allow the flow back to the tank more quickly. (Caligiuri also gave evidence to the effect that once the load capacity of the Crane was exceeded, the boom of the Crane would descend slowly, not rapidly.)

127 The difference between the experts on this third point seems to amount to no more than possibly having a differing view on the rate at which the boom could descend once the capacity of the Crane had been exceeded. This matter was considered important by the parties in light of Hogan's evidence that on one occasion, when the Crane failed, it "dropped" its load. However, Hogan's evidence itself was not clear as to the rate of descent. Moreover, I do not believe it matters how quickly the load was "dropped". The more pertinent point is the suggestion that the Crane did not perform as it should have.

128 If the evidence of Enkelman (and Caligiuri) was led with the purpose of seeking to undermine Hogan's evidence that the Crane failed to perform as it should have on the occasion where the Crane "dropped" its load, it failed to achieve that purpose. All the evidence concerning the state of the Crane before it was repaired by West Trans suggests that in late April or early May 2009 the Crane was not operating satisfactorily.

The DAF Truck and the Crane: work performed and problems encountered

129 A considerable amount of evidence was given about the performance of the DAF Truck and the Crane after its delivery to Juliana in November 2008. Before turning to those matters I set out briefly the events leading up to the delivery of the DAF Truck with the Crane installed.

130 On 20 October 2008 Paccar delivered the DAF Truck to BPW for the installation of the Crane and the Tray Top. Shortly thereafter BPW installed the Crane and the Tray Top.

131 On 12 November 2008 BPW carried out a pre-delivery inspection and completed a report for the purposes of the log book of the Crane. That report commenced with the words:

Before delivery of the loader to the customer, the following items must be checked

...

Load and stability test

Checking of LMB pressure-transducer pressure (the loader must stop operating)

...

132 Each item in the check list had been ticked. This check list was signed off by Caligiuri. He acknowledged that in fact he had not completed the check list and that this was done by Fabian Pachecko, a workshop foreman for BPW. In fact, the sign-off was computer generated, rather than the signature being executed or affixed by Caligiuri. However, Caligiuri said he was directly involved in undertaking the load and stability test for the Crane. Caligiuri said it was required by law for a crane to exceed its published specifications by 25% before it could be delivered to the customer. Caligiuri said the Crane passed the test, and that it was "rock solid". He also said he checked the transducer to ensure the Crane stopped operating at the required distance for the weight being lifted. He said the Crane also operated as required in this regard.

133 After the pre-delivery inspection had been completed by BPW, it was returned on the same day to Paccar. Paccar attended to the registration of the DAF Truck. Delivery of the DAF Truck to Juliana then took place on 20 November 2008.

134 Hogan did not perform any work at the Abigroup work site until 17 March 2009. Accordingly, there was a lapse of some 4 months between the delivery of the DAF Truck to Juliana and work performed by Juliana pursuant to the alleged Abigroup agreement.

135 It appears from exhibit D1[49] that Juliana commenced work with the DAF Truck on 1 January 2009. No explanation was given by Hogan as to why no work was performed with the DAF Truck between 20 November 2008 (when the DAF Truck was delivered) and the commencement of 2009. Given the evidence adduced about Hogan's father-in-law in Queensland, I place no significance on this period of non-use of the DAF Truck.

136 The evidence is not clear as to precisely when, but it appears that in early January 2009 Juliana performed works using the DAF Truck for a total of approximately $4,000 worth of work, charged at approximately $125 per hour. Then there was no work until early March 2009. This absence of work is to be explained by a major oil leak from the gear box of the DAF Truck.[50] Hogan gave evidence that the Truck was unusable for approximately 3 months as a result of this problem. (The evidence of the use of the DAF Truck indicates it was around 2 months, rather than 3 months.) The DAF Truck was taken back to Kenworth for fixing. In other words, it was not an issue that needed to be addressed by BPW.

137 Juliana put the DAF Truck back in use on 3 March 2009. From 3 March 2009 until 16 March 2009 it performed work under the description "Crane hire" for Freyssinet. While performing this work for Freyssinet, Juliana made no offer to provide any services to Abigroup. Hogan admitted there was nothing stopping the DAF Truck from working at Abigroup on these days, or subsequent days in March and April 2009 when the DAF Truck was deployed for Freyssinet's requirements.

138 Then, on 17 March 2009, Juliana did its first work for Abigroup. For this to occur it was necessary for Hogan to have an induction card issued in his name, which card was issued on 17 March 2009. No explanation was given by Hogan as to why he did not seek to obtain an induction card earlier.

139 Pausing there, as no works could be performed for Abigroup without an induction card, it follows that Hogan was not in a position to perform works for Abigroup before 17 March 2009. It also follows from the matters I have set out so far that any inability to do so was totally unrelated to any goods provided, or work performed, by BPW.

140 The invoice issued by Juliana in relation to the work performed on 17 March recorded the work as "Crane hire".

141 On 18 March 2009 the DAF Truck was deployed to provide services to Freyssinet. The next day the DAF Truck was used again at the Abigroup site.

142 Also on 19 March 2009, Hogan himself filled out a form entitled "external equipment hire order", being a form issued by Abigroup. In addition to recording the work performed (which included using the Crane), the form had a daily safety check list. There were 11 separate items listed on the check list, which items included "Hydraulics - leaks, damage, connections". All items listed on the check list were ticked as having no defects. This form was signed by Hogan himself, together with a supervisor from Abigroup.

143 Notwithstanding Hogan's case that Juliana had an agreement with Abigroup to work full time at Abigroup, after 19 March 2009 Juliana again deployed the DAF Truck to provide services to Freyssinet. It did this on numerous dates between 20 March 2009 and 29 April 2009. Hogan sought to explain this by stating that he wanted to get all of the problems out of the road before the DAF Truck worked at Abigroup.

144 There are 2 difficulties with this explanation. First, the DAF Truck did in fact work at Abigroup on 17 and 19 March 2009, including work involving the use of the Crane. Secondly, and more significantly, the evidence discloses that the oil leak had been fixed. There was no suggestion that the oil leak prevented works being performed in March and April 2009. Indeed, the evidence collated in exhibit D1 demonstrates that the DAF Truck was capable of performing a substantial amount of work during that period.

145 Put at its highest, it might be that Hogan refrained from using the DAF Truck continuously at Abigroup until he had operated the DAF Truck for a sufficiently lengthy period of time, so that he could be satisfied the oil leak would not occur again. Even if that were the case, this further demonstrates the delay in commencing at Abigroup cannot in any way be attributed to the goods supplied, or the conduct of, BPW.

146 In late April or early May 2009 Juliana was asked to perform works for Abigroup. These works involved attending some premises in Werribee to lift an empty container which had been placed in the wrong position by another company.

147 Upon his arrival in Werribee, Hogan hooked up the container to the Crane. When he attempted to lift the container he said all the alarms went off. He said at the time there was approximately 5½ metres between the centre of the Crane and the point where the load was attached for lifting.[51]

148 As a result of this failure ("the First Failure"), Hogan rang BPW. BPW advised Hogan he should call Caligiuri. Caligiuri no longer worked for BPW. As advised, Hogan rang Caligiuri. After Hogan had explained the problem, Caligiuri suggested Hogan break a seal to override the safety mechanisms of the Crane. Hogan refused to do this. Hogan said he was not qualified to interfere with the safety mechanisms of the Crane. Accordingly, Caligiuri agreed to attend and look at the Crane in Werribee on that day.

149 Upon attending at the Werribee premises, Caligiuri attempted to lift the container but it would not lift. Caligiuri then overrode the safety mechanisms. Having done so, he was able to lift and move the container as required.

150 The DAF Truck was then driven by Hogan to Caligiuri's premises for Caligiuri to repair and service the Crane. Hogan left the DAF Truck with Caligiuri so that he could attend to fixing the Crane. Hogan says that later that day Caligiuri told him that the Crane was right to go. Caligiuri gave a different account of what was said at the time he returned the DAF Truck to Hogan. He said that because he did not have a service terminal with him he would need to have the Crane back to have another look at it. Nothing turns on which account of this particular conversation is correct.

151 Caligiuri also said that, during the course of the work he did that day, he looked at the transducer. He said he removed the wire and fitted another transducer. As a result he was able to determine that the electronics were functioning "okay at the bottom end of the scale". Caligiuri frankly accepted the possibility that when he handed back the Crane to Hogan he might have forgotten to actually reconnect the transducer that he had disconnected. However, Caligiuri said this would not affect the operation of the Crane, but it would only mean the absence of the safety feature that the transducer provided.[52]

152 On a date that is not clear on the evidence, but shortly after the First Failure, Hogan again attended the Monash Freeway site to provide services to Abigroup. This time he was required to lift a 3 tonne wire coil. Hogan was asked to put the wire coil inside a steel frame, which required it to be lifted approximately 1½ metres from the Crane. Hogan said he lifted the coil about 4 feet off the ground, but the coil just dropped to the ground ("the Second Failure"). He said, as a result of the Second Failure, a person from Abigroup who had been standing there (who was not identified) said that this was the third incident that Abigroup had had with the Crane and Hogan had to take it to somebody to get it fixed properly.[53] Hogan said as a result he drove the DAF Truck to Serviceworks. Hogan said he did not contact Caligiuri because Caligiuri had not performed the work satisfactorily the day before.

153 The DAF Truck was then out of operation until the end of August 2009.[54] After August 2009 Juliana performed a substantial amount of work for the remainder of 2009. None of this work was for Abigroup. All of the work was described as "Crane hire", though Hogan explained that this did not necessarily mean that the Crane was used.

154 In addition there were 3 jobs done in 2010; on 5 January, on 15 March and on 31 May respectively. No explanation was given as to the downtime between these 3 dates.

155 The total amount of moneys earned by Juliana by deploying the DAF Truck from 1 January 2009 until 31 May 2010 was $67,260.74. Of this, $42,042.74 was earned after the letter was sent by Abigroup on 19 June 2009.

156 Hogan said he ceased using the DAF Truck at the end of May 2010. Hogan said he just wanted to write-off the DAF Truck. Hogan said Juliana was not willing to spend any money on the Crane at this time as "we had put enough money into it". Hogan was not willing to use the DAF Truck even if there were a different Crane on the back of it because BPW had already destroyed the chassis rails. He also said it was a problem that there were no bolts in the chassis. Hogan said he believed that the DAF Truck was unsafe at all times at least since March 2009.

157 He also said that prior to May 2010 he had tried to return the Truck to Kenworth because there had been nothing but problems since day 1.

158 I do not doubt that Hogan held the views that he says he did about the safety of the DAF Truck. However, as can be seen from the discussion about the chassis above,[55] Hogan was mistaken in his view. Hogan appeared to be of the view that because additional holes had been put in the chassis that necessarily made it unsafe. In contradistinction to this evidence was not only the expert evidence, and the VicRoads certificate, but also the evidence of Caligiuri. Caligiuri gave evidence that BPW regularly put holes in the chassis of trucks for the purposes of affixing cranes and trays. He said BPW did it as a matter of practice.

159 In the circumstances, I am driven to the conclusion that the DAF Truck ceased to earn any income after May 2010 because of the mistaken, albeit honest, belief of Hogan that he could not safely use the DAF Truck anymore.

160 Further, if Hogan had not made this decision, it is probable he could have continued to earn revenue from the DAF Truck. He stated if the DAF Truck had been in proper working order another customer of Juliana would have wanted the DAF Truck 7 days a week. In those circumstances, it must follow that if Juliana did suffer any loss, it failed to take reasonable steps to mitigate that loss.[56]

161 Before leaving this topic in relation to the DAF Truck, it must also be noted that by May 2010 the DAF Truck had 27,000 kilometres on its odometer. This demonstrates that the Truck was able to perform a substantial amount of work, which fact is corroborated by the evidence the subject of exhibit D1.

162 This still leaves the 2 occasions where the Crane failed to perform in accordance with the specifications provided by BPW (the First and Second Failures). There seems little doubt that on these 2 occasions the Crane did fail to perform even at a level that BPW said it should. In my view, this does not make out Hogan's case. The 2 events occurred more than 5 months after the Truck had been delivered. Prior to that time the DAF Truck had been utilised for the purpose of numerous works, including using the Crane. There was no complaint about the performance of the Crane during that time. Further, it appears that after July 2009, whatever problems the Crane may have had were fixed. As noted above, this was done at the expense of BPW.[57] Based on this evidence, I cannot be satisfied that the cause of the First Failure or the Second Failure could be attributed to any conduct of BPW as at, or prior to, November 2008 (when the DAF Truck was delivered with the Crane installed).

163 As noted above, the Tray Top was not in accordance with Juliana's requirements because it was approximately 6 inches short of the 8 metres specified.

164 In relation to the purpose made known to BPW that the DAF Truck was required to lift and transport containers, there was no suggestion that the shorter Tray Top prevented the DAF Truck from performing this work. Indeed, once the pins were fixed by West Trans, there was no basis for suggesting that the Tray Top could not carry a 20 foot container. No claim is made by Juliana for the inability of the DAF Truck to properly carry containers prior to the remedial work performed by West Trans.

At a glance

Court

Decision date

Before

Source

Judgment (341 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (13)