Fodico Pty Ltd v The Ship “Intermezzo”(No 2)

[2019] QDC 84

DISTRICT COURT OF QUEENSLAND

CITATION:

Fodico Pty Ltd v The Ship “Intermezzo”(No 2) [2019] QDC 84

PARTIES:

FODICO PTY LTD (ACN 010 122 433)
(Plaintiff)

v

THE SHIP “INTERMEZZO”
(Defendant)

FILE NO/S:

D31/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

29 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Smith DCJA

ORDER:

The costs of and incidental to the application are to be costs in the proceeding.

CATCHWORDS:

PRACTICE AND PROCEDURE- COSTS – whether it is appropriate to order costs in the proceedings or order the unsuccessful party to pay costs

Admiralty Rules 1988 (Cth) r 18

Uniform Civil Procedure Rules 1999 (Qld) rr 681, 693

Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192

Geraldton Port Authority v Ship “Kim Heng 1888” & Ors (No 2) (2012) 291 ALR 471; [2012] FCA 353.

COUNSEL:

Dr A. Marinac for the plaintiff

Solicitors for the defendant

SOLICITORS:

Pacific Maritime Lawyers Pty Ltd for the plaintiff

Thynne & Macartney for the defendant

1. This is the costs decision consequent on the decision given in Fodico Pty Ltd v The Ship “Intermezzo”.[1] 

   [1][2019] QDC 64.

1. The plaintiff submits that the appropriate order is that costs be costs in the proceeding because the defendant, in initiating a crossclaim, gave an in personam character to the proceedings and the change in the Baker’s marital status could not be anticipated at the time of the initial pleadings.  It is also submitted that neither party based submissions on Geraldton Port Authority v Ship “Kim Heng 1888” & Ors (No 2).[2] 

   [2](2012) 291 ALR 471; [2012] FCA 353.

1. In particular, it is submitted that Mrs Baker initiated a counterclaim alleging negligence on the part of the plaintiff in the salvage of the Intermezzo.  This was made as a natural person in respect of the contract which she signed.  It is also submitted that the Bakers separated and Mr Baker, not being the owner or charterer of the vessel, could not be a relevant person in the in rem action. 

1. It is submitted that overall the appropriate order would be for the costs of the application to be considered costs in the proceeding.

1. The defendant on the other hand submits that this clearly was an in rem action.  It is submitted it would be appropriate for the plaintiff to pay the defendant and Mrs Baker’s costs of the application on the standard basis. 

1. It is submitted the plaintiff’s application had no reasonable prospect of success because the wording and effect of r 18 of the Admiralty Rules is clear.  With respect to the in personam character of the counterclaim, it is submitted there is ample authority for this to occur.[3] 

   [3]See for example Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 at [111].

Disposition

1. Rule 681 of the Uniform Civil Procedure Rules 1999 provides that ordinarily costs ought to follow the event. But this rule is not absolute and there is a discretion to make other orders as the interests of justice dictate.

1. In this case the parties were not apprised of Geraldton Port Authority v Ship “Kim Heng 1888” & Ors (No 2)[4] until the day of the hearing. 

   [4](2012) 291 ALR 471; [2012] FCA 353.

1. Prior to this it is understandable that the Plaintiff thought that it was entitled to join the Bakers because of the decision of Greenwood J.

1. Of course there is also the fact that a counter-claim was brought alleging breach of contract and negligence.

1. In all of the circumstances I consider that the appropriate order is to order that the costs of and incidental to the application be costs in the proceeding.