FEDERAL COURT OF AUSTRALIA

OW Bunker and Trading Company Ltd A/S v “Mawashi Al Gasseem” [2005] FCA 1041

ADMIRALTY – arrest of ship – claim for payment of bunkers supplied – application for summary judgment – application unopposed.

Evidence Act 1995 (Cth) s 190(3)

Federal Court of Australia Act 1976 (Cth) s 52

Federal Court Rules O 20 r 1, O 35 r 8

OW BUNKER AND TRADING COMPANY LTD A/S v THE SHIP “MAWASHI AL GASSEEM”

No SAD 146 of 2005

FINN J

ADELAIDE

26 JULY 2005

THE COURT ORDERS THAT:

1.         Judgment be given in the sum of $US639,379.60, together with interest under s 52 of the Federal Court of Australia Act 1976, at the rate specified in O 35 r 8(a) of the Federal Court Rules.

2.         Reserve the question of costs. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for summary judgment under O 20 r 1 of the Federal Court Rules (“the Rules”).  Notwithstanding both that the defendant Kuwaiti Saudi Co for Livestock, Meat and Fodder has filed no defence to the statement of claim and does not oppose the application, and that the plaintiff's legal representative has deposed that in her belief the defendant has no defence to the claim, I nonetheless must be satisfied that every element in the cause of action is fully proved in the affidavits filed on the plaintiff’s behalf.  I am so satisfied.

2                     The claim is for a liquidated sum, being the unpaid purchase price together with interest, in respect of two quantities of bunker oil supplied by the plaintiff, OW Bunker and Trading Co Ltd A/S, that was delivered to the vessel, MV Mawashi Al Gasseem, on 4 February 2005.  The defendant, according to the Lloyd's Register of Ships 2004-2005, is the registered owner of that vessel.  The three affidavits filed by Hazel Joy Brasington exhibit copies of a Bunker delivery receipt signed by the vessel's chief engineer, an invoice in respect of the sale and an admission of debt, by what I infer to be an agent of the defendant who appears to be manager of the vessel.

3                     The plaintiff's case is that the proper law of the contract is Danish law, the supply being on the plaintiff's terms and conditions of sale for marine bunkers which Ms Brasington deposed were, as a matter of Danish law, incorporated into and form part of the contract of sale of the bunkers on the basis of a course of dealings in which the plaintiff has, in the past, sold marine bunker fuel to the defendant.  The evidence of that course of dealing, the sufficiency of which I accept, is the subject of Ms Brasington's third affidavit. 

4                     While the evidence of Danish law and its effects are a matter of fact and are to be proved accordingly, I am prepared to exercise my discretion under s 190(3) of the Evidence Act 1995 (Cth) to permit it to be proved, as it has in this matter, by hearsay evidence.

5                     As I earlier indicated, I am satisfied that the plaintiff's claim has been made out.  I will order that judgment be given in the sum of $US639,379.60, together with interest on that judgment, under s 52 of the Federal Court of Australia Act 1976, at the rate specified in O 35 r 8(a) of the Rules.

6                     Reserve the question of costs.

Associate:

Dated:              28 July 2005