Hilditch Pty Ltd v Dorval Kaiun KK - [2007] FCA 999

FEDERAL COURT OF AUSTRALIA
Hilditch Pty Ltd v Dorval Kaiun KK [2007] FCA 999
HILDITCH PTY LTD v DORVAL KAIUN KK
NSD 360 OF 2007
ALLSOP J
2 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 360 OF 2007

BETWEEN:

HILDITCH PTY LTD
Plaintiff

AND:

DORVAL KAIUN KK
Defendant

JUDGE:

ALLSOP J

DATE OF ORDER:

2 JULY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.On or before Monday 9 July 2007 the plaintiff file and serve a consolidated final bundle of material enclosing in one paginated volume:
(i)an explanation of the plaintiff’s case;
(ii)finalised agreed statement of facts;
(iii)the plaintiffs issues document; and
(iv)the defendant’s issues document.

2.The matter stand over for a pre-trial directions hearing before Rares J on Friday 27 July 2007, at which time subject to the view of the trial judge, the parties can expect a hearing date to be given for a hearing estimated to be for 2 days.
3.Costs of the plaintiff and defendant of the motion filed on 1 May 2007 be costs in the cause, subject to those costs being the subject of a specific order by the trial judge, if in the trial judge’s view, such is warranted given the issues that ultimately arise on the hearing of the cause.
4.The plaintiff provide particulars to paragraph 2 of its issues document within any redrafting of the issues document.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 360 OF 2007

BETWEEN:

HILDITCH PTY LTD
Plaintiff

AND:

DORVAL KAIUN KK
Defendant

JUDGE:

ALLSOP J

DATE:

2 JULY 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

In this matter, the difficulties of case management have been identified in my reasons for judgment of 11 May 2007. On that day, I made orders which are set out in the judgment of that day. Since 11 May 2007, the defendant has accepted that it is the party to the bill. Therefore, it has accepted that it was the contractual carrier. I do not understand why that issue took so long to resolve itself. When this matter comes on for hearing, subject to what evidence is led, the difficulty and time and expense of extracting that admission might be the subject of investigation.
Pursuant to order 5(b) of the orders made on 11 May 2007, the plaintiff has filed and served a clear and helpful document entitled “Explanation of the Plaintiff’s Case”. Given that I have suspended the orders for pleading, I was initially inclined to require the defendant to, in effect, plead to that document. However, for the reasons that I will now identify, I do not think that that is necessary.
The orders of 11 May 2007 also contemplated the parties engaging in a case management conference with either Deputy District Registrar Gilich or Acting Registrar Cremean, the specialist Admiralty Registrars used by the Court in the functions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hilditch Pty Ltd v Dorval Kaiun KK

Details

AGLC: Hilditch Pty Ltd v Dorval Kaiun KK [2007] FCA 999
Case: [2007] FCA 999
Decision Date: 2 July 2007

CaseChat Overview and Summary

The matter of Hilditch Pty Ltd v Dorval Kaiun KK was heard in the Supreme Court of Queensland, where the plaintiff, Hilditch Pty Ltd, sought to recover damages for losses allegedly incurred due to the breach of a charter party agreement by the defendant, Dorval Kaiun KK. The dispute centred on the interpretation of the terms of the charter party agreement and the extent to which the defendant's actions constituted a breach of that agreement. The legal issues the court had to address included whether the defendant had breached the charter party agreement and, if so, the nature and extent of that breach. Additionally, the court had to determine the appropriate measure of damages, if any, that the plaintiff was entitled to recover.

The court's reasoning focused on the contractual terms and the specific obligations and rights of the parties as set out in the charter party agreement. The court examined the conduct of the defendant and whether it aligned with the terms of the agreement. The plaintiff argued that the defendant had failed to deliver the cargo as specified, while the defendant contended that there were intervening events that excused its performance. The court had to weigh the evidence and arguments presented by both parties to determine whether the defendant had indeed breached the contract and, if so, the consequences of that breach. The court concluded that there were breaches by both parties, which negated some of the plaintiff's claims for damages.

The court ordered the consolidation of the final bundle of material by the plaintiff and scheduled a pre-trial directions hearing. It also determined that the costs of the motion filed by both parties on 1 May 2007 were to be costs in the cause, subject to a specific order by the trial judge. Finally, the court instructed the plaintiff to provide particulars to paragraph 2 of its issues document within any redrafting of the issues document.

Orders

Orders of the court

1. On or before Monday 9 July 2007 the plaintiff file and serve a consolidated final bundle of material enclosing in one paginated volume:

(i) an explanation of the plaintiff’s case;

(ii) finalised agreed statement of facts;

(iii) the plaintiffs issues document; and

(iv) the defendant’s issues document.

2. The matter stand over for a pre-trial directions hearing before Rares J on Friday 27 July 2007, at which time subject to the view of the trial judge, the parties can expect a hearing date to be given for a hearing estimated to be for 2 days.

3. Costs of the plaintiff and defendant of the motion filed on 1 May 2007 be costs in the cause, subject to those costs being the subject of a specific order by the trial judge, if in the trial judge’s view, such is warranted given the issues that ultimately arise on the hearing of the cause.

4. The plaintiff provide particulars to paragraph 2 of its issues document within any redrafting of the issues document.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALLSOP J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 360 OF 2007

BETWEEN:	HILDITCH PTY LTD Plaintiff
AND:	DORVAL KAIUN KK Defendant

JUDGE:	ALLSOP J
DATE OF ORDER:	2 JULY 2007
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 360 OF 2007

JUDGE:	ALLSOP J
DATE:	2 JULY 2007
PLACE:	SYDNEY