FEDERAL COURT OF AUSTRALIA

Yacht Club Sopot SP. Z.O.O. v The Yacht “Monster Project” (No. 2) [2019] FCA 1425

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to EcoNautics Racing International Ltd to file a submitting notice on behalf of itself and the defendant vessel “Monster Project” outside of the time period stipulated in r 12.01(2)(d) of the Federal Court Rules 2011 (Cth).

2.    The submitting notice is to be otherwise filed in accordance with the r 12.01 of the Federal Court Rules 2011 (Cth).

3.    Questions of costs in relation to the defendant and EcoNautics Racing International Ltd filing a submitting notice are reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

STEWART J:

1    The Monster Project was previously sold under the authority of the Court and a modest fund has been established from the proceeds of sale. Creditors have by public advertisement been put on notice of the timing and procedure to make their claims against the fund. I am told that aside from the Admiralty Marshal’s costs and the costs of sale, there are two competing claims against the modest fund.

2    The owner of the vessel is EcoNautics Racing International Ltd. It is named in the writ as the “relevant person” (see s 17 of the Admiralty Act 1988 (Cth) and r 15(1) of the Admiralty Rules 1988 (Cth)), being said to be personally liable on the general maritime claim that arose in relation to the vessel. It has appeared before me today by counsel and sought leave to, in effect, withdraw from this proceeding, explaining that it no longer has any interest in it. It accepts that it has no remaining interest in the fund which is well exceeded by the existing claims. It says that it has no interest in disputing those claims and, understandably, does not wish to run up costs through further involvement in the proceeding. For those reasons it wishes to submit to any orders that the Court may make.

3    The owner having defended the proceeding on behalf of the first defendant vessel, the proceeding is one both in rem against the vessel (now substituted by the fund) and in personam against the owner: Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; 157 FCR 45 at [109] per Allsop J. Having become a party to the proceeding, EcoNautics’s intended submission to any orders that the Court may make is governed by r 12.01 of the Federal Court Rules 2011 (Cth) (FCR). That rule provides that for a party served with an originating application (as service of the writ on the vessel is in this case equivalent to), a submitting notice must be filed before the return date. EcoNautics consequently seeks an exercise of discretion by the Court under r 1.34 of the FCR to waive compliance with the timing requirement to enable it to file a submitting notice.

4    The interests that need to be protected in considering that application include any claim that the Admiralty Marshal may have for costs arising from the assertion at one point by EcoNautics that it had a claim against the Admiralty Marshal arising from the partial sinking of the vessel: see Yacht Club Sopot SP. Z.O.O. v The Yacht “Monster Project” [2019] FCA 1083 at [2] per Rares J. Counsel for EcoNautics has confirmed today that that claim will not be pursued. That leaves only the question of costs in relation to it, if any.

5    Secondly, insofar as the plaintiff is concerned, there may be a balance of the claim against EcoNautics depending on what the plaintiff gets from the fund, if anything, as well as costs claims. The plaintiff submits that by defending the proceeding EcoNautics has submitted to the jurisdiction of the Court in respect of those claims and that EcoNautics should not be allowed out of the proceeding unless it provides an address within the jurisdiction for service on it of any process.

6    Since r 12.01 of the FCR requires a submitting notice to include an address for service, I consider that the plaintiff’s concern is met by me granting leave to the owner to file such a notice in accordance with that rule and to waive the requirement that the notice be filed before the first return date which is long gone. Any costs claims that the plaintiff or the Admiralty Marshal may wish to assert, and to which EcoNautics has said that it intends to submit to, are intended to be kept alive to be determined on some future occasion, if pressed.

7    I will order accordingly.

Associate:

Dated:    30 August 2019