Coco Saba Pty Ltd
[2019] VSC 305
•6 May 2019
| IN THE SUPREME COURT OF VICTORIA COMMERCIAL COURT ADMIRALTY LIST | Not Restricted |
S ECI 2019 1690
IN THE MATTER of an application by the plaintiff under the Shipping Registration Act 1981 (Cth) for rectification of the Australian General Shipping Register
| COCO SABA PTY LTD (ACN 159 520 411) C/- Prior & Co Pty Ltd, Level 16, 379 Collins Street, Melbourne VIC 3000 | Plaintiff |
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JUDGE: | Digby J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 May 2019 |
DATE OF JUDGMENT: | 6 May 2019 |
CASE MAY BE CITED AS: | Coco Saba Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 305 |
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ADMIRALTY – Application that the Australian General Shipping Register be rectified to record Coco Saba Pty Ltd as the owner of the vessel ‘Capella III’ - Entitlement to enter and register a vessel on the Australian General Shipping Register – Shipping Registration Act 1981 (Cth), s 59(1).
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APPEARANCES: | Solicitor |
| For the Plaintiff | Mr S Officer of Willon Legal |
HIS HONOUR:
This is the final hearing of an application by Coco Saba Pty Ltd (the plaintiff) under s 59 of the Shipping Registration Act 1981 (Cth) (the Act). Section 59(1)(c) of the Act relevantly provides that if an entry wrongly exists in the Australian General Shipping Register (the Register) maintained under the Act, a person aggrieved may apply to the Supreme Court of a State or Territory for rectification of the Register and the Court may make such order as it thinks fit directing the rectification of the Register.
The plaintiff established to the Court’s satisfaction that all relevant correspondence and materials filed in this application, including the Originating Motion and Affidavits in support and their exhibits were, by way of service pursuant to s 59(4) of the Act, provided to the Australian Maritime Safety Authority (AMSA).[1]
[1]By email dated 18 April 2019 [11.12am] the Principal Solicitor of the AMSA, on behalf of the Registrar of Ships, acknowledged service of the plaintiff’s Originating Motion and supporting materials.
The Register currently records an entity described as Ourway Corporate Cruises Pty Ltd (Ourway)[2] as holding 64 shares in the vessel known as ‘Capella III’, official number 853305 (the vessel).
[2]Affidavit of David John Harper, 16 April 2019, [4(a) and (b)].
Background
On or around 30 June 2015, the plaintiff agreed to purchase all 64 shares in the vessel from Seal Cove Investments Pty Ltd (Seal Cove). Seal Cove failed or neglected to lodge the relevant bill of sale and declaration of transfer with the Registrar of Ships, in accordance with the requirements of the Act, for the purpose of updating the ownership of the vessel on the Register.[3]
[3]Ibid [19].
The vessel was last the subject of an entry on the Register on 9 January 1990. The registered owner at that time, of all 64 shares in the vessel, was Ourway, [4] a company which was deregistered in 2017.
[4]Ibid [4(a) and (b)].
Application
By Originating Motion dated 17 April 2019, the plaintiff seeks:
(a) a declaration that the plaintiff is the owner of the 64/64ths interest in the vessel, formerly owned and shown in the Register as being owned by Ourway;
(b) a declaration that the plaintiff is entitled to be entered on the Register as the owner of the vessel;
(c) a declaration that the Register presently wrongly records Ourway as the current owner of 64/64ths interest in the vessel by no reason of omission or error or decision of the Registrar of Ships nor any of his officers; and
(d) an Order under s 59(1) of the Act that the Register be rectified to record the plaintiff as the owner of the vessel.
In support of the application, the plaintiff relies upon the following:
(a) Affidavit of David John Harper affirmed 16 April 2019 and exhibits (the first Harper Affidavit);
(b) Affidavit of David John Harper affirmed 6 May 2019 and exhibits (the second Harper Affidavit); and
(c) Affidavit of Samantha Elizabeth Seale affirmed 6 May 2019 and exhibits (the Seale Affidavit).
Relevant legislation
Section 59(1) of the Act provides:
If:
(a) an entry is omitted from the General Register or International Register;
(b)an entry is made in the General Register or International Register without sufficient cause;
(c)an entry wrongly exists in the General Register or International Register; or
(d)there is an error or defect in an entry in the General Register or International Register;
whether or not by reason of a decision of an officer (including a decision that the officer was empowered by this Act to make) a person aggrieved or the Registrar may apply to the Supreme Court of a State or Territory for rectification of that register, and the Court may make such order as it thinks fit directing the rectification of that register.
The facts relating to the sale of the vessel
From Ourway to Seal Cove
On or around 25 August 2003 Ourway agreed to sell, and Seal Cove agreed to purchase, all 64 shares in the vessel for the total sum of $310,000. The sale was brokered through Jackson’s Marine (Int) (Jackson’s Marine).
David John Harper (Harper) affirms that he was appointed director and secretary for Seal Cove on 19 February 1996 and that the purchase of the vessel by Seal Cove was handled by him in his capacity as director of Seal Cove.[5]
[5]Ibid [7].
Seal Cove paid a deposit of $77,500 to Jackson’s Marine and obtained finance for the remaining balance, being $232,500 through Capital Finance Australia Limited.[6]
[6]Ibid [9(b) and (d)].
A true copy of the historical company extract in relation to Ourway dated 16 April 2019[7] shows that Mr Peter Carroll was director of Ourway at the time of the sale. A copy of the vessel’s bill of sale between Ourway and Seal Cove dated 27 August 2003 and signed by Peter Carroll is exhibited to the first Harper Affidavit.[8]
[7]Ibid Exhibit ‘DH-4(E).
[8]Ibid [9(f)], Exhibit ‘DH-4’.
The historical company extract discloses that Ourway was deregistered as an Australian proprietary company on or around 26 August 2007.
Harper also deposes that he made several enquiries with Jackson’s Marine as to the whereabouts of the original copies of the bill of sale and declaration of transfer between Ourway and Seal Cove and was advised by Jackson’s Marine that it only had photocopies of the said documents in their possession.[9]
[9]Ibid [11].
From Seal Cove to the plaintiff
On or around 30 June 2015 Seal Cove agreed to sell, and the plaintiff agreed to purchase, all 64 shares in the vessel for the sum of $450,000.[10] The sale was handled by Harper in his capacity as sole director and secretary of Seal Cove and at the time of this transaction also the sole director of the plaintiff.[11]
[10]Ibid [13].
[11]Harper was appointed director of the plaintiff on 1 June 2015 and resigned on 12 April 2019; Affidavit of David John Harper, 16 April 2019, [2].
The relevant bill of sale was signed by Harper on behalf of Seal Cove, and a copy of the declaration of transfer was signed by Harper on behalf of the plaintiff, both dated 18 February 2019.[12]
[12]Affidavit of David John Harper, 16 April 2019, Exhibit ‘DH-5’.
Harper also affirms that:
(a) an oversight occurred in not registering the sale of the vessel from Ourway to Seal Cove in 2003 and as a result the relevant bill of sale and declaration of transfer were not provided to the Registrar of Ships;[13]
[13]Affidavit of David John Harper, 6 May 2019, [7].
(b) an omission occurred in relation to not registering the sale of the vessel from Seal Cove to the plaintiff in 2015;[14]
(c) the vessel was owned by Seal Cove between 29 August 2003 and 30 June 2015 and since 30 June 2015, all shares in the vessel were owned by the plaintiff and the vessel remains the property of the plaintiff;[15] and
(d) the Certificate provided under s 174 of the Personal Property Securities Act 2009 dated 16 April 2019 indicates there is no security interest or other registration registered against the vessel.[16]
[14]Ibid [8].
[15]Ibid [9].
[16]Affidavit of David John Harper, 16 April 2019, Exhibit ‘DH-6’.
In the Seale Affidavit, Samantha Elizabeth Seale (Seale) affirms that:
(a) she was appointed sole director of the plaintiff on 12 April 2019;[17]
(b) the vessel is currently located at 19 Glendale Avenue, Hastings, in the State of Victoria. Seale also affirms that based on certain records and her discussions with Harper she believes that the vessel has been located at the Hastings address since it was purchased by the plaintiff in 2015[18] and that the plaintiff remains in exclusive possession of the vessel;[19] and
(c) on 6 May 2019, she received written confirmation from the plaintiff’s accountants recording the purchase of the vessel and showing it to be an asset of the plaintiff in the plaintiff’s books of account.[20]
[17]Affidavit of Samantha Elizabeth Seale, 6 May 2019, [2].
[18]Ibid [5].
[19]Ibid [6].
[20]Ibid [7].
The Registrar of Ships
On 19 February 2019, the plaintiff’s solicitor wrote to the AMSA seeking to register the vessel on the plaintiff’s behalf. On 20 February 2019 Mr Peter Barker (the Deputy Registrar of Ships), pursuant to s 48 of the Act, replied by email stating, amongst other things:
…when a vessel is Australian registered only a bill of sale document can be lodged to transfer ownership for each change of ownership. For example, in your case there are 2 transfers of ownership, each sale would require a bill of sale from the registered owner through to the current owner along with completing a couple of other forms from each buyer, plus fees.[21]
[21]Affidavit of David John Harper, 16 April 2019, Exhibit ‘DH-7’.
Following further communications that day between the plaintiff’s solicitor and the Deputy Registrar of Ships, the Deputy Registrar of Ships reaffirmed the Shipping Registration Office’s position that ‘The legislation is clear that this office can only act on original documents (bill of sale and declaration of transfer forms) for a transfer of ownership’.[22]
[22]Ibid.
Accordingly, absent the original bill of sale and the original declaration of transfer, or Court Order, the Registrar of Ships is appropriately unwilling to rectify the Register so as to register the transfer the plaintiff has requested.[23]
[23]By email dated 20 February 2019 [2.12pm] from the Deputy Registrar of Ships to plaintiff’s solicitors, the Deputy Registrar of Ships mentioned to the plaintiff that an option to achieve appropriate rectification of the relevant Register may be to seek a Court Order to that effect; Affidavit of David John Harper, 16 April 2019, ‘Exhibit ‘DH-7’.
By written communication of 18 April 2019 to the lawyer for the plaintiff, the Principal Solicitor of the AMSA advised that the Registrar did not oppose the plaintiff’s Motion or proposed order and further advised that the Registrar did not intend to appear on the return of that Motion.
Conclusion
I am in this matter, and on the abovementioned materials, satisfied that:
(a) at the date of this application, the entry in the Register of Ourway as the owner of 64 shares in the vessel is in error and the Register ought to be rectified;
(b) the state of the Register is not the result of any error or omission or fault of the Registrar;
(c) the plaintiff is the sole owner of the vessel;
(d) the plaintiff has proffered a satisfactory explanation and provided relevant supporting material as to why it has failed or neglected to register the vessel and in respect of the above detailed antecedent failures to register the vessel;
(e) the plaintiff has taken steps to attempt to register the vessel unsuccessfully with the Registrar of Ships for reasons outlined above; and
(f) the Certificate provided under s 174 of the Personal Property Securities Act 2009 dated 16 April 2019 indicates there is no security interest or other registration registered against the vessel.[24] In the circumstances the relief sought by the plaintiff is most unlikely to adversely affect any creditor.
[24]Affidavit of David John Harper, 16 April 2019, Exhibit ‘DH-6’.
Declarations and Order
Accordingly the Court declares that:
1.The plaintiff is the owner of the 64/64ths interest in the vessel ‘Capella III’ (official number 853305) formerly owned and shown on the Australian General Shipping Register as being owned by Ourway Corporate Cruises Pty Limited.
2.The plaintiff is entitled to be entered on the Australian General Shipping Register as the owner of the vessel ‘Capella III’ (official number 853305).
3.The Australian General Shipping Register presently wrongly records Ourway Corporate Cruises Pty Limited as the current owner of 64/64ths interest in the vessel ‘Capella III’ (official number 853305) by no reason of omission or error or decision of the Registrar of Ships nor any of the Registrar’s officers.
and I order that:
1.Pursuant to section 59(1) of the Shipping Registration Act 1981 (Cth) the Australian General Shipping Register be rectified to record the plaintiff as the owner of the vessel ‘Capella III’ (official number 853305).
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