King Sound Resort Hotel Pty Ltd v Fish “N” Trips Pty Ltd
[2019] FCA 1269
•13 August 2019
FEDERAL COURT OF AUSTRALIA
King Sound Resort Hotel Pty Ltd v Fish “N” Trips Pty Ltd [2019] FCA 1269
File number: NSD 1087 of 2019 Judge: ALLSOP CJ Date of judgment: 13 August 2019 Date of hearing: 13 August 2019 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance – Insurance List Category: No Catchwords Number of paragraphs: 7 Counsel for the Applicant: Mr J R Anderson Solicitor for the Applicant: Hannams Solicitors Counsel for the First Respondent: The first respondent did not appear Counsel for the Second Respondent: Mr J E Wyatt of Clyde & Co ORDERS
NSD 1087 of 2019 BETWEEN: KING SOUND RESORT HOTEL PTY LTD ACN 119 430 198
Applicant
AND: FISH "N" TRIPS PTY LTD ACN 160 329 108
First Respondent
AUSTRAL INSURANCE BROKERS PTY LTD ACN 009 455 234
Second Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
13 AUGUST 2019
THE COURT ORDERS THAT:
1.The operation of r 16.32 of the Federal Court Rules 2011 (Cth) in relation to the filing of a defence be suspended.
2.Liberty be granted to apply on three days’ notice for the parties to approach either the chambers of the Chief Justice or Registrar Farrell for any assistance with any aspect of case management.
3.The matter be stood over for case management hearing on Friday 6 September 2019 at 11:30am AEST but the parties have general liberty to apply to vary that date should circumstances require it.
THE COURT DIRECTS THAT:
4.The applicant and the second respondent, through their legal advisors, seek to create, as soon as reasonably practicable, a document setting out their respective positions towards the litigation that has been commenced, including the position and possible joinder of the underwriter.
5.The parties serve that document upon the underwriter, Sunderland Marine, as soon as reasonably practicable after its creation.
THE COURT NOTES:
6.The intention of the parties to take steps towards resolving the matter with Sunderland Marine prior to 6 September 2019.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)ALLSOP CJ:
This is a matter involving a marine claim for loss or damage to a vessel owned by the applicant chartered to the first respondent. The first respondent is not before the Court.
There are two other parties in the matter. First, the second respondent, which is the broker which arranged marine cover from underwriters being Sunderland Marine Insurance Company Limited which provided hull and P&I cover in respect of the subject vessel. Sunderland is not a party as yet and has presently indicated to the broker that it proposes to refuse cover on the basis of the operation of a marine warranty that was said to be given to it to the effect that the first respondent was the owner.
There is an issue as to whether the insurance and the vessel was covered by the Marine Insurance Act 1909 (Cth) or the Insurance Contracts Act1984 (Cth). That would have a significant impact on the availability of a marine warranty defence.
The applicant has not yet joined the underwriter, nor has the second respondent broker. Mr Wyatt, who appears for the broker, has indicated that the underwriter has indicated that it is prepared to discuss a commercial resolution of the claim.
The parties before me (the applicant and the second respondent) are agreed that the best course to take in order to bring the matter to an early mediation, if that is possible, is for the applicant and the second respondent to confer within the next, hopefully, two weeks to settle a document which is agreed in terms that sets out their respective positions between each other and in relation to the underwriter, as far as that position is known. That document can then be put to solicitors who have been engaged, apparently, for the underwriter with a view to a mediation occurring in the not-too-distant future.
I have indicated to the parties, and they are agreeable, that if they need, either for the creation of the document to which I have just referred or for a future mediation, to have recourse to Commercial Registrar Farrell, that can be done.
The above course means that I will suspend the operation of any aspect of the rules requiring a defence to be filed. The parties should attempt to use the process that I have outlined above to move the matter to a resolution by agreement, if that is possible, with a minimum of legal expenses in relation to litigious steps.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 14 August 2019
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