Incitec Ltd v Alkimos Shipping Corporation

[2004] FCA 839

FEDERAL COURT OF AUSTRALIA

Incitec Ltd v Alkimos Shipping Corporation [2004] FCA 839

ADMIRALTY AND MARITIME – practice and procedure - costs

INCITEC LTD v ALKIMOS SHIPPING CORPORATION AND ANOR
N 303 of 2003
SUMITOMO AUSTRALIA LTD v ALKIMOS SHIPPING CORPORATION
N 304 of 2003

ALLSOP J
30 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 303 of 2003

BETWEEN:

INCITEC LTD
PLAINTIFF

AND:

ALKIMOS SHIPPING CORPORATION
FIRST DEFENDANT

HYUNDAI MERCHANT MARINE CO LTD
SECOND DEFENDANT

JUDGE:	ALLSOP J
DATE:	30 JUNE 2004
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 304 of 2003

BETWEEN:	SUMITOMO AUSTRALIA LTD PLAINTIFF
AND:	ALKIMOS SHIPPING CORPORATION DEFENDANT

JUDGE:	ALLSOP J
DATE OF ORDER:	30 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        In each of the matters N 303 of 2003 and N 304 of 2003 the costs of Alkimos Shipping Corporation and Hyundai Merchant Marine Co Ltd in the motions to file and serve cross-claims and to stay any such cross-claims be each party’s costs in the said proceedings.

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	N 303 of 2003

BETWEEN:

INCITEC LTD
PLAINTIFF

AND:

ALKIMOS SHIPPING CORPORATION
FIRST DEFENDANT

HYUNDAI MERCHANT MARINE CO LTD
SECOND DEFENDANT

JUDGE:	ALLSOP J
DATE:	30 JUNE 2004
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 304 of 2003

BETWEEN:	SUMITOMO AUSTRALIA LTD PLAINTIFF
AND:	ALKIMOS SHIPPING CORPORATION DEFENDANT

JUDGE:	ALLSOP J
DATE:	30 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 3 June 2004, I granted leave to the owner (Alkimos) to cross-claim against the charterer (Hyundai) in each of these matters.

2. This was in the face of an exclusive jurisdiction clause. For this reason I said at the end of my judgment ([2004] FCA 698) that I would hear the parties on the proper order as to costs. The owner seeks its costs of the motion. It says that it won a contested motion on well established principles.

3. The charterer says that the proper order for costs should be that the costs of both the owner and the charterer in relation to the notices of motion should be each party’s costs in the cause.

4. I agree with the charterer’s submissions. The usual rule is that the costs follow the event. However, the Court is given a wide discretion in s 43 of the Federal Court of Australia Act 1976 (Cth), which, however, must be exercised judicially.

5. There are sufficient circumstances here which warrant the order that I propose.  Alkimos was not entirely successful in its opposition to Hyundai’s position.  In particular, I rejected some of the important submissions put by Alkimos regarding the nature of the claim and whether or not it fell within the dispute resolution clause.  Further, the judgment as to the exercise of discretion in these matters is often a difficult one to predict.  I indicated that the balance was a “fine one”, see [66] of my earlier reasons.  Further, Hyundai did not act unreasonably in seeking to enforce its contractual bargain. 

6. In all the circumstances I think that a just and proper outcome is that each party should have its costs in the respective cause.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:   30 June 2004

Counsel for ASC:	Dr A Bell
Solicitor for ASC:	Middletons
Counsel for Hyundai:	Mr G Nell
Solicitor for Hyundai:	Sparke Helmore
Written submissions received
Date of Judgment:	30 June 2004