Lloyd Werft Bremerhaven GmbH v Owners of the Vessel “Zoya Kosmodemyanskaya”
[1999] FCA 1765
•17 DECEMBER 1999
FEDERAL COURT OF AUSTRALIA
Lloyd Werft Bremerhaven GMBH v Owners of the Vessel “Zoya Kosmodemyanskaya” [1999] FCA 1765
LLOYD WERFT BREMERHAVEN GMBH v
THE OWNERS OF THE VESSEL "ZOYA KOSMODEMYANSKAYA" AS SURROGATE FOR THE SHIPS "TARAS SHEVCHENKO" "DELPHINE" (PREVIOUSLY "KAZAKHSTAN II" PREVIOUSLY "BYELORUSSIYA") AND "KAZAKHSTAN"
NG 311 OF 1997
TAMBERLIN J
SYDNEY
17 DECEMBER 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
IN ADMIRALTY
NG 311 OF 1997
BETWEEN:
LLOYD WERFT BREMERHAVEN GMBH
PLAINTIFFAND:
THE OWNERS OF THE VESSEL "ZOYA KOSMODEMYANSKAYA" AS SURROGATE FOR THE SHIPS "TARAS SHEVCHENKO" "DELPHINE" (PREVIOUSLY "KAZAKHSTAN II" PREVIOUSLY "BYELORUSSIYA") AND "KAZAKHSTAN"
DEFENDANTS
JUDGE:
TAMBERLIN J
DATE:
17 DECEMBER 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This was an application by the plaintiff to vacate four hearing days fixed for 13-16 December 1999 and to stay the Notices of Motion set for hearing on those dates. I made orders on 7 December allowing the application in part and now set out my reasons.
The basis for the application is that on 14 April 1999 orders were made vacating a hearing fixed for 19-21 April 1999 with consequential orders that the defendant should pay the costs of the motion heard on that date, together with any costs thrown away as a result of the vacation of those hearing dates. Leave was granted to tax such costs and to take steps forthwith to recover the costs. The hearing of the matter was later fixed for 4 days commencing on 13 December 1999.
After considerable delay on the part of the solicitors for the plaintiff, the costs were eventually taxed and on 27 September 1999 notice was given of an estimate of the taxed costs pursuant to O 62 r 46(3)(b) of the Federal Court Rules for the amount of $16,384. On 7 October 1999 the solicitors for the defendant filed notice of objection to the estimate under O 62 r 46(3)(c) of the Federal Court Rules. On 21 October 1999, the solicitors for the plaintiffs foreshadowed that as a consequence of the objection to the Court’s estimate of costs it was possible that the costs would not be formally taxed and paid before the date fixed for hearing in December. The solicitors gave notice that if the taxation process was not completed and the costs paid at least 14 days prior to the hearing, they would apply to vacate the hearing and stay the proceedings pending completion of the taxation process and payment of the costs.
On 8 November 1999, solicitors for the defendant wrote to the Court stating that they had instructions to withdraw the objection and on 11 November 1999 a Certificate of Taxation was issued by the Court.
The costs have not been paid.
Having heard the submissions and read the affidavit evidence filed, and having regard to the material to which I was referred, I am not satisfied that any case has been made out for vacation of the hearing dates. However, I am persuaded that this is a case in which a condition should be imposed that the proceedings will be stayed unless the taxed costs are paid by 5.00 pm on Friday 10 December 1999.
This is not a case where any inconvenience which the plaintiff may suffer outweighs the public interest in having this litigation proceed in a timely and efficient manner. This is a case where a three day hearing has been previously vacated and in which the issue of a stay for non-payment is raised very late in the proceedings. In fact the formal Notice of Motion for vacation of the hearing dates, despite earlier threats, was only filed in Court last Thursday 2 December 1999.
It is claimed for the plaintiff that if the costs were not paid prior to the hearing then although resort could be had to moneys held as security for the costs of the proceeding, such security would be substantially reduced. There is some force in this submission and this is the basic reason why I think it appropriate to order a conditional stay.
The orders made on 14 April did not embody any provision as to a stay in the event that the costs were not paid although it appears this matter was mentioned in the course of submissions at that time.
It was for the above reasons that I made the orders granting a conditional stay when the matter came before me on 7 December. As to costs of this application I consider the appropriate order is that the costs be the costs of successful party on the Amended Notices of Motion brought by the defendants dated 5 March 1998, and again I made orders to that effect on 7 December.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin Associate:
Dated: 17 December 1999
Counsel for the Plaintiff: G Nell Solicitor for the Plaintiff: Phillips Fox Counsel for the Defendants: A S Bell Solicitor for the Defendants: Norton White Date of Hearing: 8 December 1999 Date of Judgment: 17 December 1999
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