Programmed Total Marine Services Pty Ltd v Ships “Hako Endeavour”, “Hako Excel” and “Hako Esteem”

The case involved Programmed Total Marine Services Pty Ltd, which brought an action against three vessels, the “Hako Endeavour”, “Hako Excel” and “Hako Esteem”. Programmed had provided manning services to the vessels but had not been paid by the demise charterer, Hako. Programmed arrested the vessels and continued to provide services during the arrest. The dispute centred on whether Programmed could recover the costs of providing services during the arrest, and whether it could amend its writs and pleadings to include additional claims against the vessels for the demise charterer's liabilities after the termination of the demise charter.

The court had to decide whether the application to amend the writs and pleadings was statute-barred, and whether it should exercise its discretion to refuse leave to amend. The court also had to consider whether the costs of providing manning services during the arrest were recoverable as costs of the proceeding, and whether Programmed was engaged by the Marshal to provide the services. Additionally, the court needed to construct the relevant contracts and determine whether there was an implied contract for continued provision of services and an implied request for services by the demise charterer.

The court allowed the appeal and granted Programmed's application to amend its writs and pleadings to include a claim in quantum meruit. The court held that the additional claims were not statute-barred and that the discretion should be exercised to allow the amendment. The court also held that the costs of providing manning services during the arrest were recoverable as costs of the proceeding and that Programmed was not engaged by the Marshal to provide the services. The court further held that there was an implied contract for continued provision of services and an implied request for services by the demise charterer.

The court dismissed the cross-appeal and ordered that Programmed and the cross-respondent file draft minutes of order reflecting the conclusions expressed in the reasons. The court held that the respondents and cross-appellants should pay Programmed and the cross-respondent's costs of the appeal and cross-appeal, unless either party wished to advance an argument about costs.