Federal Court of Australia

Dan-Bunkering (Singapore) Pte Ltd v The Ship Yangtze Fortune (Distribution) [2024] FCA 1220

ORDERS

THE COURT ORDERS THAT:

1.    The AUD fund be merged with the USD fund by transferring the amount standing to the credit of the former to the latter at the best possible exchange rate offered by the relevant bank

2.    The remaining balance of the fund be distributed in the following proportions:

(a)    Dan-Bunkering (Singapore) Pte Ltd – 10.9%;

(b)    Soar Harmony Shipping Ltd – 42.09%;

(c)    Australasian Global Exports Pty Ltd – 47.01%.

3.    The Admiralty Marshal effect payment of the fund in the proportions recorded in order 2, in consultation with the parties as to the final amounts, as soon as possible after 1 November 2024.

4.    The parties bear their own costs, including as to the priorities hearing.

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

REASONS FOR JUDGMENT

(Delivered ex tempore)

STEWART J:

1    On 1 October 2024, I delivered reasons in support of my conclusions that the three claims remaining against the fund, being those of Dan-Bunkering (Singapore) Pte Ltd (DB), Soar Harmony Shipping Ltd (SH) and Australasian Global Exports Pty Ltd (AGE), rank pari-passu and should be paid rateably. I also ordered that the parties bring in agreed or competing orders with regard to final payments to be made, and any remaining issues in the case. See Dan-Bunkering (Singapore) Pte Ltd v The Ship Yangtze Fortune (Priorities) [2024] FCA 1149.

2    The parties have calculated their respective proportions based on their judgments against the fund as at today’s date, including post-judgment interest up until today. Those proportions are agreed as follows: DB – 10.90%; SH – 42.09%; and AGE – 47.01%.

3    The present position in relation to the funds is that there is a small AUD fund with a balance of approximately AU$39,113, and then a larger USD fund with a balance of approximately US$4,740,117. It is envisaged that the distributions from the fund should be in USD.

4    In order to achieve that, I propose ordering that the money standing to the credit of the AUD fund be transferred to the USD fund, thereby creating one consolidated fund. That exchange will obviously take place at the rate that the relevant bank is prepared to offer at the time that the transfer is done.

5    There is a further aspect in relation to the funds, which is that both, as I understand it, are earning interest, but that interest is payable by the bank only on the first day of the month. The parties are agreed that in order to be able to take advantage of the interest that has thus far accrued this month, and bearing in mind that there will inevitably be a little delay before any payments from the fund can be made, payments should be made as soon as possible after 1 November 2024.

6    The essential issue to deal with today is one of costs. That arises because SH has applied for an order that DB and AGE pay its costs of the determination of the issues in dispute at the hearing on 17 and 18 June 2024. The parties are otherwise agreed that they should bear their own costs of the proceeding, and of proving and establishing their own claims and obtaining judgment, save to the extent that those costs have already been ordered in a party’s favour.

7    SH’s argument for its costs is straightforward. It submits that between DB and AGE, a number of arguments were put against it in the June hearing, both as to its entitlement to a judgment against the fund and as to its entitlement to an equal priority ranking with the other claimants. Rightly, it says that it was successful on those issues, and SH thus argues in accordance with the usual rule it should have its costs.

8    I am not satisfied that justice is best served in this case by making an order giving effect to that outcome. It is relevant that SH had to apply for and get judgment against the fund, as did AGE. Each of those parties had to put forward evidence in support of those claims for judgment and satisfy the court and, indeed, the other parties, of their entitlement to judgment. There also had to be a priorities hearing in any event.

9    But more particularly, as explained in my reasons of 1 October 2024, there is some novelty in SH’s claim. Ultimately, I upheld it, finding it to be a good claim both with respect to the judgment SH sought and the ranking that SH sought. Yet no previous case was brought to my attention, or that I was able to find, where the owner of a vessel had obtained judgment against the vessel or the fund established from the sale of the vessel in pursuance of a general maritime claim. Equally, there was no such case dealing with the ranking of such a claim.

10    There are also further considerations. It is difficult to separate out the costs of establishing the claims and justifying the judgments from the costs occasioned by the unsuccessful opposition that was raised, made more complicated by the fact that DB and AGE did not raise quite the same points in opposition, although some of them were the same or overlapped. Of course, a process of taxation can separate out differences in costs of that nature, but that will merely entail delay and the expending of further costs, and that would be in circumstances where, as it is, the fund is not sufficient to pay all the claims in full. Delay would also mean further post-judgment interest would accumulate.

11    I also take into consideration that the fund is under the administration of the Court for the benefit of the creditors generally, the remaining creditors being those before me now in this proceeding; the point being that this is not ordinary inter partes litigation.

12    Taking all those matters into account, it seems to me that justice is best served by all parties bearing their own costs and the fund being distributed simply in accordance with the percentages that I have already documented.

Associate:

Dated:    21 October 2024