Daebo International Shipping Co Ltd v The Ship Go Star (No 3)

In the case of Daebo International Shipping Co Ltd v The Ship Go Star (No 3), the respondent, the ship Go Star, applied for a stay of the Full Court orders that required payment of the judgment sum to the successful appellant, Daebo International Shipping Co Ltd, until the hearing of the respondent ship's special leave application by the High Court of Australia. The court was required to decide whether the circumstances were 'exceptional' to warrant the exercise of the 'extraordinary' decision to grant a stay and whether the application for special leave would receive serious consideration by the High Court. The balance of convenience was also considered, particularly since neither party held assets in Australia.

The court found that this was an exceptional case warranting a stay. Both parties were foreign entities with no assets in Australia. The owners were brought into the Australian admiralty jurisdiction solely because the ship had berthed at Albany in Western Australia and was arrested. The court noted that if the funds presently on account were paid out to Daebo and the owners were to succeed on the ultimate appeal, they would have to attempt to pursue recovery of those funds in Korea where Daebo had assets. These factors rendered the situation rare or exceptional and weighed heavily in the balance of convenience. The court also found that there was an argument of some merit that had a reasonable prospect of serious consideration on a special leave application, which was quite different from predicting that an appeal, if leave were granted, would be likely to succeed.

The court granted the application for a stay, with the condition that the respondent pay a further AUD45,000.00 into the existing controlled bank account or a fund to be agreed by the parties within 10 days. The court also ordered that the costs of the application be costs in the appeal, if any, and if leave to appeal is refused, costs of this application be costs in the application for special leave to appeal. The decision highlights the principles concerning the grant of a stay pending an application for special leave to the High Court and the importance of considering the balance of convenience in such cases.