Pondcil P/L v Tropical Reef Shipyard P/L

[1994] FCA 580

qY-

JUDGMENT No.	........ ....
PTY. m.

:	-	Cooper I. Brisbane
.	-
2 August, 1994

-

= the applicant Tropical Reef Shipyard Pty. Ltd. by its

the usual undertakings as to damages -

1. Save for the performance by Pondcil Pty. Ltd. ("Pondcil") andlor Starline Rentals Pty. Ltd. ("Starline") of a contract of sale for the sale of the vessel "Western Queen" previously named "Island Princess" and "Queen of the Isles" to Western Development Corporation of the Solomon Islands, Pondcil and Starline be restrained by themselves, or their servants or agents or otherwise from deal~ng with or otherwise disposing of any property or interest in the said vessel until 2.15 p.m. Thursday 4 August, 1994 or earlier order, PROVIDED ALWAYS that if Pondcil andtor Starline complete any sale to the said Western Development Corporation prior to 2.15 p.m. Thursday 4 August, 1994, then they or each of them be

Pondcil and Starline.

restrained by themselves their servants or agents or otherwise from dealing

with or disposing of the proceeds of sale until 2.15 p.m. 4 August 1994 or earlier order other than to hold the a d proceeds subject to any further order of the Court.

THE COURT DIRECTS :-

2.                    Notice of this order be given forthwith by telephone and fax to the Brisbane and Melbourne offices of Messrs. Phillips Fox, solicitors for

1. The notice of motion, supporting affidav~ts, and a copy of this order be served by fax transmlsaon on the Melbourne office of Messrs. Phillips Fox, solicitors, by 12 midday, Wednesday, 3 August 1994.

p :-

1. The notice of mohon be adjourned to 2.15 p.m. 4 August 1994.

2. The costs of today be rese~ed.

m: Settlement and entry of orders is dealt with in Order 36 of the Federal Court

Rules.

CORAM:	Cooper J.
PLACE:	Brisbane
DATE:	2 August, 1994

This is an application for a Mareva injunction sought by Tropical Reef

Shipyard Pty. Ltd., the respondent in application VG412 of 1991. The respondent was

successful in resisting a claim by the applicants for damages and was itself successful on

its crossclaim obtaining judgment recently for the cost of work and labour done.

The question of costs of the proceedings remains outstanding, the applicants

having requested that they be given an opportunity to make specific submissions in

relation to the question of costs. The matter of costs has been listed for 2.15 p.m.

Thursday 4 August, 1994. In the material filed the estimate of the cost of the

proceedings is some $75,000 to $100,000, including outlays of approximately $32,000, if

the normal order as to costs is made; namely, that costs follow the event.

A draft affidavit of Mr. Jones has been filed. I am advised that the

original signed affidavit will also include a paragraph to the effect that the vessel
"Atlantic Clipper", the subject of the within achon, has been sold and that the remaimng
asset in the ownership of Pondcil Pty. Ltd. is a vessel onginally called "Queen of the
Isles", then "Island Princess", and more latterly "Western Queen". On the material, that
vase1 has been sold to the Westem Development Corporation of the Solomon Islands and
is due to settle, subject to satisfachon of contract conditions, withln the next day or two.

T h m is concern that if the vessel is sold and property passes to Western Development Corporation, the proceeds of sale will be dissipated so as to defeat the judgment as to the

cross claim, which is in the sum of some $7000.00 plus, but more importantly, the benefit of any costs order which may be made as a result of hearing submissions on

Thursday next.

The application is made ex parte. There is a strong arguable case that an

order for costs will be made and, indeed, an order on the cross clam has been made. The question of whether or not there is nsk of dissipation of assets is one that has

concerned me. Nonetheless, I am satisfied that a limited order ought to be made to

prrsave pending argument on the matter, the proceeds of sale. I am not, in the

circumstances, prepared to restrain disposition of the vessel. The contract of sale

between Western Development Corporahon and the owner of the vessel has been known
to the applicant for this injunchon for approximately six weeks.	There has been no

explanation as to why the applicahon has been brought so late. In those circumstances, I would not be prepared to make any order that prejudices the rights of Western Development Corporation.

The balance of convenience in terms of simply maintrumng the status quo
pending argument on Thursday, is in favour of the making of an order preventing

disposition of the vessel to anyone other than Western Development Corporation and if

that should occur, to restrain disposition of the proceeds of sale.

m the applicant Tropical Reef Shipyard Pty. Ltd. by its counsel giving

the usual undertakings as to damages -

-COURT :-

l. Save for the performance by Pondcil Pty. Ltd. ("Pondcil") andlor

Starline Rentals Pty. Ltd. ("Starline") of a contract of sale for the

sale of the vessel "Western Queen" previously named "Island Princess" and "Queen of the Isles" to Western Development Corporation of the Solomon Islands, Pondcil and Starline be

restrained by themselves, or theu servants or agents or otherwise from dealing with or otherwise disposing of any property or interest in the said vessel until 2.15 p.m. Thursday 4 August, 1994 or

earlier order, PROVIDED that if Pondcil andlor Starline complete any sale to the srud Western Development Corporation pnor to 2.15 p.m. Thursday 4 August, 1994, then they or each of them be restrained by themselves their servants or agents or

otherwise from dealing wlth or d~sposing of the proceeds of sale until 2.15 p.m. 4 August 1994 or earlier order other than to hold the srud proceeds subject to any further order of the Court.

C O U R T :-

2.	Notice of this order be given forthw~th by telephone and fax to the Brisbane and Melbourne offices of Messrs. Phillips Fox, solic~tors for
Pondcil and Starline. The notice of motion, supporting affidavits, and a copy of this order be
served by fax transmission on the Melbourne office of Messrs. Phillips Fox, solicitors, by 12 midday, Wednesday, 3 August 1994.
p	:-

1. The notice of motion be adjourned to 2.15 p.m. 4 August 1994.

2. The costs of today be reserved.

   I certify that thii and the precediig three (3) pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Cooper.

   Date: 2 August, 1994

Counsel for the Applicant:	Ms. A. Phihppides
Solidtors for the Applicant:	Messrs. Murrell Stephenson

Date of Hearing	2 August, 1994
Date of Judgment:	2 August, 1994

Attention: Judgments Clerk

Please find herewith judgment
and disk containing judgment

in the matter of Pondcil v.

Tropical Reef Shipyard VG 4 1 2 / 9 1 .

JUDGES' CHAMBERS

FEDERAL COURT OF AUSTRALIA

119 NORTH QUAY

BRISBANE 4000
AUSTRALIA