Sealawn Pty Ltd v The Andirina Pearle

[2000] WASC 54

SEALAWN PTY LTD -v- THE ANDIRINA PEARLE [2000] WASC 54

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 54
Case No:	ADM:2/1999	Heard:	3 MARCH 2000
Coram:	MASTER BREDMEYER	Delivered:	8/03/00
No of pages:	4	Judgment Part:	1 of 1
Result:	Costs orders made
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Parties:	SEALAWN PTY LTD (ACN 069 120 510) THE ANDIRINA PEARLE THE PAMELA
Catchwords:	Costs on consolidation of actions
Legislation:	Admiralty Rules (Cth) r  18
Case References:	Administracion Nacional de Combustibles Alcohol y Portland-ANCAP v Ridgley Shipping Inc [1996] 1 Lloyd's Rep 570 The Kalamazoo (1851) 15 Jur 885

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SEALAWN PTY LTD -v- THE ANDIRINA PEARLE [2000] WASC 54 CORAM : MASTER BREDMEYER HEARD : 3 MARCH 2000 DELIVERED : 8 MARCH 2000 FILE NO/S : ADM 2 of 1999 BETWEEN : SEALAWN PTY LTD (ACN 069 120 510)

Plaintiff

AND

THE ANDIRINA PEARLE
Defendant

FILE NO/S : ADM 3 of 1999 BETWEEN : SEALAWN PTY LTD (ACN 069 120 510)

Plaintiff

AND

THE PAMELA

Defendant

Catchwords:

Costs on consolidation of actions

Legislation:

Admiralty Rules (Cth) r 18

(Page 2)

Result:

Costs orders made

Representation:

ADM 2 of 1999

Counsel:

Plaintiff : Mr N D Billington
Defendant : Mr C R McKerlie

Solicitors:

Plaintiff : Cahill Billington
Defendant : Colin McKerlie

ADM 3 of 1999

Counsel:

Plaintiff : Mr N D Billington
Defendant : Mr C R McKerlie

Solicitors:

Plaintiff : Cahill Billington
Defendant : Colin McKerlie

Case(s) referred to in judgment(s):

Administracion Nacional de Combustibles Alcohol y Portland-ANCAP v Ridgley Shipping Inc [1996] 1 Lloyd's Rep 570

Case(s) also cited:

The Kalamazoo (1851) 15 Jur 885

(Page 3)

1 MASTER BREDMEYER: This is a dispute over costs. Mr McKerlie is not yet on the record for the defendants but has undertaken to file the necessary notice.

2 The plaintiff has commenced three actions. The first is District Court Action No 4484 of 1998 against Longcape Investments Pty Ltd, which is the owner of three vessels, The Andirina Pearle, The Pamela and The Cat. The action is for goods and services supplied for the sum of $26,480.76. The plaintiff applied for summary judgment. The application was opposed and summary judgment was refused. Shortly after that refusal, the plaintiff commenced two actions in rem in this Court: ADM 2 of 1999 against The Andirina Pearl for goods and services supplied, $10,957.26 and ADM 3 of 1999 for goods and services supplied to The Pamela, $18,599. In each case a conditional appearance was filed, the vessel was arrested, the money claimed was paid into court and the vessel released from arrest.

3 The plaintiff now seeks to remit the District Court action to this Court and consolidate it with the two actions in this Court. That procedure is not opposed except as to costs. The costs orders proposed by the plaintiff in its chamber summons before me are:

"8. Costs in ADM 2 of 1999, ADM 3 of 1999 and District Court Action Number 4484 of 1998 be costs in the consolidated action.

9. The costs of this application be reserved to the trial judge".

4 Counsel for the defendants says that there has been unnecessary duplication of costs in bringing the three separate actions and that the appropriate costs orders should be - Order 8 as asked with the following rider: "Save that costs thrown away or duplicated or otherwise unnecessary be not payable by the defendants"; and 9: "The plaintiff to pay the defendant's costs of this application in any event.".

5 I consider it was not wrong for the plaintiff to bring the initial action in the District Court. The claim was a simple one, for payment for goods and services supplied and well within the monetary limit of the District Court. I consider it was also not wrong for the plaintiff to have brought the two Admiralty actions in rem in this Court. The benefit of those procedures is that it gives the plaintiff security for the sums of money claimed. It is akin to applying for a Mareva injunction. It was not possible to obtain those orders in the District Court as the District Court

(Page 4)

does not have Admiralty jurisdiction. Secondly, it was not possible to sue Longcape Investments Pty Ltd in personam in the Admiralty actions because, by r 18 of the Admiralty Rules (Cth), a proceeding commenced as an action in personam cannot be commenced by the same initiation process as the process by which a proceeding is commenced as an action in rem. If it is desired to bring an action in rem and an action in personam, each action must be begun by separate writs. It is not vexatious or an abuse of process to start an action in personam and then later an action in rem: Halsbury's Laws of Australia, Vol 17 par 270 - 2140, Footnote 4, citing Administracion Nacional de Combustibles Alcohol y Portland-ANCAP v Ridgley Shipping Inc [1996] 1 Lloyd's Rep 570 at 573 per Longmore J. If the defendant is ultimately unsuccessful in this action, then it is unfortunate for the defendant that three actions have been commenced and three filing fees incurred, rather than one action. But given our Rules and the law, that is inevitable. The vessels could not be arrested in a District Court action and the in personam claim for $26,480.76 could not have been added as a separate cause of action against Longcape Investments Pty Ltd in the two Admiralty actions. Moreover, as I understand it, a separate Admiralty action for the arrest of each vessel was not wrong. Goods and services were supplied to each vessel. I consider the appropriate costs orders are order 8 as asked by the plaintiff, and order 9, "costs of this application are in the cause of the consolidated action". I will make those orders and orders 1 to 7 and 10 as asked.