McConaghy Pty Ltd v The Yacht “Ragamuffin”

[2004] FCA 433

FEDERAL COURT OF AUSTRALIA

McConaghy Pty Ltd v The Yacht “Ragamuffin” [2004] FCA 433

McCONAGHY PTY LTD v THE YACHT “RAGAMUFFIN”
N 448 of 2004

ALLSOP J
30 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 448 of 2004

BETWEEN:	McCONAGHY PTY LTD PLAINTIFF
AND:	THE YACHT "RAGAMUFFIN" DEFENDANT
JUDGE:	ALLSOP J
DATE OF ORDER:	30 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for the release of the vessel from arrest be dismissed.

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 448 of 2004

BETWEEN:	McCONAGHY PTY LTD PLAINTIFF
AND:	THE YACHT "RAGAMUFFIN" DEFENDANT

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

REASONS FOR JUDGMENT

1. In this matter, a writ was filed in this Court on 30 March 2004, that is, today, by James Neill, solicitor, on behalf of the plaintiff in these proceedings. The particulars of the claim are that the plaintiff is a boat builder who claims to have refitted the defendant yacht at the request of the yacht's registered owner, Mr Fischer. A balance of $22,831.71 is said to be outstanding. The plaintiff's claim is for a general maritime claim under s 4 (3) (m), (n) and (o) of the Admiralty Act 1988 (Cth).

2. An arrest warrant was issued today.  The yacht has been arrested.  It is now under arrest.  The affidavit in support of the application for arrest identifies the nature of the claim, as I have identified.  The quantum of the claim is said to be $22,831.71.  The affidavit in support asserts that the registered owner has admitted all but $9,132, and interest is claimed for a period of approximately 2 years and costs.

3. An ex parte application was made to me to release the vessel. No substantive challenge was made to the nature of the claim falling within those paragraphs of s 4(3) that I have identified. Some discussions have apparently taken place over the telephone in relation to the sum involved.

4. Mr Colquhoun, on behalf of the defendant, presses the application for release on the basis that his client will pay to the plaintiff $13,000 off the debt tomorrow, leaving $9,831 outstanding.  A sum of $1,500 has been offered for interest, not the claim in the particulars in the affidavit.  That lesser sum is by reference to the fact of the promise to pay the $13,000 off the debt tomorrow, and a sum for costs of $10,000 is offered as security for costs.  Thus it is said that tomorrow $21,331 will be paid into Court, and the sum of $13,000 will be paid off the debt.

5. The solicitor for the plaintiff has apparently been contacted and is not agreeable to and does not agree to that offer.  The plaintiff wishes for a higher sum for costs, and pending money in their hand. I imagine they wish for the full sum of $22,831.71 paid into Court.

6. Arrests are not injunctions.  They are the physical arrest of a res as security for the claim in the Admiralty jurisdiction. I do not know what has preceded today in relation to the discussion about what is owed. The debt may well be in dispute. That is not to the point. The claim is made, the foundation for an arrest has been made out, and there is a dispute about the appropriate amount of security. I am not in a position to finalise that dispute now. If these parties have not been able to reach an appropriate sum to secure what is a local court claim. It may be that the plaintiff is being unreasonable and without good cause demanding excessive security, or has unreasonably obtained the arrest of the vessel. I do not suggest that that is the case, but if it is the case, there will be a remedy under s 34 of the Admiralty Act in relation to the conduct of the plaintiff.  I do not propose to discharge the arrest or release the vessel on the promise of these things happening tomorrow in the absence of the agreement of the plaintiff.

7. I will have the matter called in Court at 9.00 am tomorrow.  If parties have any further evidence they wish to lead before me at that time, I will resume hearing for the release of the vessel.  Security can always be provided by paying money into Court, and an application being made at a later date in relation to the appropriateness of the amount.

8. If the yacht or those who have an interest in her are not prepared to provide what is asked for by the plaintiff, and then fight about the appropriateness of that level of security in due course, the yacht will remain under arrest.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            15 April 2004

Counsel for the Defendant:	Mr Colquhoun
Solicitor for the Defendant:	Mr Nichols
Date of Hearing:	30 March 2004
Date of Judgment:	30 March 2004