FEDERAL COURT OF AUSTRALIA
Watson v Speed Boat “Sneaky Bits” [2002] FCA 1437
ADMIRALTY – application for arrest of ship under Admiralty Act 1988 (Cth) – where ship arrested pursuant to Federal Court warrant – application for transfer of proceedings to Supreme Court of Queensland where order of that court in relation to sale of vessel already in operation.
Admiralty Act 1988 (Cth) s 27
ANDREW CHARLES WATSON V SPEED BOAT “SNEAKY BITS” REGISTRATION NUMBER KQ547Q AND CAPEWALL PTY LIMITED
N 1122 OF 2002
BEAUMONT J
14 NOVEMBER 2002
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
N 1122 OF 2002 |
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BETWEEN: |
ANDREW CHARLES WATSON PLAINTIFF
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AND:
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SPEED BOAT “SNEAKY BITS” REGISTRATION NUMBER KQ547Q DEFENDANT
CAPEWALL PTY LIMITED APPLICANT
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BEAUMONT J |
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DATE OF ORDER: |
14 NOVEMBER 2002 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. These proceedings be transferred to the Supreme Court of Queensland.
2. The costs of the present motion be Capewall Pty Limited’s costs in the proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
N 1122 OF 2002 |
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BETWEEN: |
ANDREW CHARLES WATSON PLAINTIFF
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AND:
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SPEED BOAT “SNEAKY BITS” REGISTRATION NUMBER KQ547Q DEFENDANT
CAPEWALL PTY LIMITED APPLICANT
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JUDGE: |
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DATE: |
14 NOVEMBER 2002 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
(ON NOTICE OF MOTION SEEKING TRANSFER OF PROCEEDINGS)
BEAUMONT J:
1 Before the Court is a notice of motion under s 27 of the Admiralty Act 1988 (Cth) (“the Act”), seeking an order that this Court transfer the proceedings to the Supreme Court of Queensland. The application arises in the following context.
2 By originating application, filed in the Supreme Court of Queensland on 30 September 2002 and returnable on 8 October 2002, Capewall Pty Limited (“Capewall”) applied to that court for the following orders:
1. “An order pursuant to 471B of the Corporations Act that the Applicant be given leave nunc pro tunc to begin this proceeding.
2. A declaration that the Deed bearing date the 8th day of August 2001 between Capewall Pty Ltd (ACN 092 469 424) (‘the Applicant’) (defined therein as ‘the Lender’) and Timber Tec Holdings Pty Ltd (ACN 088 647 723) (‘the First Respondent’) (defined therein as ‘the Mortgagor’) is a valid and subsisting ‘charge’ within the meaning of that term as used in Chapter 2(K) of the Act.
3. A declaration that pursuant to the said Deed, and as a consequence of the events that have occurred, the Applicant is entitled to possession of the chattel the subject of the said Deed, namely one 41 foot vessel registration number KQ547Q, hull series number AUWWA024412ABG, engine number 166709A, together with all vessel fixtures, fittings, appliances and equipment.
4. A declaration that the Second Respondent has wrongfully detained the said chattels.
5. An order that the Applicant recover possession of the said chattels from the First and/or Second Respondents.
6. Consequential orders as to delivery of possession of the chattels to the Applicant.”
3 Capewall joined as respondent to its Originating Application, Timber Tec Holdings Pty Limited (in liquidation) (“Timber Tec”) as first respondent and Ross Andrew Duus, the liquidator of Timber Tec, as second respondent. On 8 October 2002, Philippides J made orders. The parties to those proceedings have informed me that the orders were made by consent. The orders made were as follows.
“1. The Respondents (without admission) give possession of the vessel described in paragraph 3 of the Application and all equipment and contents to the Applicant in situ in the water at Gold Coast City Marina.
2. The Applicant shall sell the subject vessel, equipment and contents by private treaty or auction and shall pay to the trust account of Quinn & Box Solicitors the proceeds of such sale after payment of all commissions and expenses of sale including the costs to the Applicant of maintenance and upkeep of the vessel from the date of this order until completion of sale.
3. The solicitors for the Applicant shall retain the said net proceeds of sale in their trust account pending agreement of the parties or order of the court as to disposal thereof.
4. The Applicant at all times to keep the Respondent appraised of the sale process.
5. Originating Application adjourned to a date to be fixed.
6. That the Originating Application continue as though it was started by claim.
7. The Applicant file and serve a Statement of Clam by 5 November 2002.
8. The Respondents file and serve a Defence by 3 December 2002.
9. The parties provide disclosure by 21 December 2002.
10. The parties file and serve any further Affidavits intended to be relied upon by 21 December 2002.
11. Liberty to apply.”
4 Subsequently, the present proceedings were commenced in this Court and an arrest warrant was taken out on 24 October 2002. The Marshal arrested the vessel on 25 October 2002 on the Gold Coast, Queensland, where the vessel is presently held. The matter came before me, in the first instance, as a result of a memorandum written by the Marshal to my Associate. The memorandum stated:
“Deputy District Registrar Lance Grant advises me that this matter has been allocated to Beaumont J’s docket.
I am the marshal in admiralty in charge of the ship ‘Sneaky Bits’ which was arrested on Friday, 25 October 2002 on the Gold Coast, Queensland, pursuant to a warrant for arrest issued out of the NSW Registry in the abovementioned matter.
The ship is also the subject of current Supreme Court of Queensland proceedings and on 8 October 2002, Phillipides J ordered that the respondents (without admission) give possession of the vessel to the applicants for sale by private treaty or auction and for the proceeds of such sale to be held in trust pending the outcome of the action before the Supreme Court. A copy of the relevant order is attached.
The parties in the Federal Court action have been involved in discussions with a view to settling the matter and/or having it transferred to the Supreme Court, however, to date, no agreement has been reached.
The parties also indicated to me that they intended to bring the matter before the Court as soon as practicable to ascertain the impact, if any, of the arrest on the operation of the order of Phillipides J. However, they have not done so.
Therefore, in my capacity of marshal, I would ask that the matter be listed for a directions hearing before the judge at his earliest convenience so that the issue can be clarified. I would be grateful if you would please take this matter up with Beaumont J on my behalf and let me know what listing arrangements are proposed in due course.
... .”
5 The matter was, therefore, listed before me for directions on 12 November 2002. Mr James appeared for the plaintiff and Mr Radcliffe appeared, with the Marshall, by telephone from Queensland. Mr Radcliffe appeared for Capewall. I stood the matter over until today. In the meantime, the notice of motion seeking, inter alia, the transfer of the proceedings to the Supreme Court of Queensland has been filed on behalf of Capewall. I have also had before me, again by telephone from Brisbane, Mr Coulsen who appears for Timber Tec and for the liquidator.
6 On behalf of Capewall, reliance is placed upon the circumstances that both Capewall and Timber Tec are companies registered in Queensland, and have registered offices in that State. As I have said, the vessel is currently held under arrest in that State. The Supreme Court of Queensland clearly has jurisdiction to entertain the present proceedings in this Court. I do, of course, have a discretion as to whether I should order a transfer.
7 In the exercise of that discretion, it seems to me that a primary consideration is the need to avoid unnecessary multiplicity of actions arising out of the same area of dispute. As it appears that an issue will arise between these parties which will involve disputes of a proprietary nature (since Capewall claims to be a secured creditor with security over the vessel), it is essential, in my view, in the interests of doing justice between all of the parties concerned, that one court, not two, administer that justice.
8 Plainly, this Court cannot order that the Supreme Court of Queensland proceedings be transferred to this Court. On the other hand, this Court has the power to transfer vested under s 27 of the Act. Prima facie then, the balance of convenience strongly favours the transfer to the Supreme Court of the present proceedings. This conclusion is reinforced by the circumstances I have mentioned, indicating that there are strong connections in the State of Queensland with the underlying dispute between the parties.
9 However, as mentioned in the course of argument, I would not be prepared to make an unconditional order for transfer. In my opinion, it is essential, in the interests of the administration of justice in these particular circumstances that, as mentioned, multiplicity of suits be avoided. It is true that there may be technical difficulties in the consolidation of the Supreme Court proceedings and these proceedings. However, I need not stay to consider that because, in my opinion, any potential prejudice in this regard can be appropriately accommodated by the giving of appropriate undertakings on behalf of Capewall.
10 Mr Radcliffe has foreshadowed that, if required, his client will give certain undertakings as follows. First, that unless Mr Watson applies to the Supreme Court of Queensland to interplead in those proceedings, Capewall will apply to the Supreme Court to add Mr Watson as an additional respondent in that proceeding. Secondly, that Capewall will consent to an order that evidence in the present Supreme Court proceedings being received as evidence in Mr Watson’s proceedings. Thirdly, that Capewall will, pursuant to the liberty to apply reserved under the order of 8 October 2002, apply to the Supreme Court as soon as practicable for directions in relation to the conduct of the Supreme Court proceedings and of Mr Watson’s proceedings upon transfer to that court.
11 I accept those undertakings and, upon those undertakings being given, order that this proceeding be transferred to the Supreme Court of Queensland. I order that the costs of the present motion be Capewall’s costs in the proceedings.
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I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. |
Associate:
Dated: November 2002
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Counsel for the Plaintiff: |
Mr E Cox |
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Solicitor for the Plaintiff: |
Ebsworth & Ebsworth |
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Counsel for Capewall Pty Limited (applicant in Supreme Court of Queensland proceedings): |
Mr G Radcliff |
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Solicitor for Capewall Pty Limited (applicant in Supreme Court of Queensland proceedings): |
Quinn Box & Muller |
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Counsel for Ross Andrew Duus (second respondent in Supreme Court of Queensland proceedings): |
Mr C Coulson |
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Solicitor for Ross Andrew Duus (second respondent in Supreme Court of Queensland proceedings): |
Minter Ellison |
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Date of Hearing: |
14 November 2002 |
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Date of Judgment: |
14 November 2002 |
