Sirius Shipping Corporation v The Ship Sunrise

[2006] NSWSC 905

CITATION:	Sirius Shipping Corporation v The Ship Sunrise [2006] NSWSC 905
HEARING DATE(S):	01/09/06
JURISDICTION:	Equity Division Admiralty List
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	09/01/2006
DECISION:	Order authorising encumbrances on the ship Sunrise to be withdrawn.
CATCHWORDS:	PROCEDURE [91]- Plaintiff stating address for service in body of pleading without fax number- Fax number stated at foot of front page of pleading- Held address for service included fax number- Thus plaintiff could be served by fax. PROCEDURE [113]- Orders- Scope of order appears in reasons for judgment- Noted by associate- Associate's notes recorded on Court's computer- Successful party relies on this as entry of order- Opponent declines to sign document to give effect to order- Order made for court officer to sign document.
LEGISLATION CITED:	Civil Procedure Act 2005, s 94 Uniform Civil Procedure Rules 2005, Part 36 rule 11, Part 10 rule 5(2)(b)
PARTIES:	Capital Finance Australia Limited (Second Relevant Person/Applicant)
FILE NUMBER(S):	SC 6/2003
COUNSEL:	R J Carruthers (2nd Relevant Person/Applicant)
SOLICITORS:	Bartier Perry (2nd Relevant Person/Applicant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADMIRALTY LIST

YOUNG CJ in EQ

Friday 1 September 2006

6/2003 – SIRIUS SHIPPING CORPORATION v THE SHIP "SUNRISE"

JUDGMENT

1 HIS HONOUR: On 10 May 2006 I delivered a reserved judgment as to who was the owner of the ship "Sunrise". I indicated the orders that I would make in paras 126 to 129 under the heading "The overall result of the case". These proposed orders were not set out in the detailed format that one would normally make orders and I must confess I expected that the solicitors would put the orders in proper form after discussion between themselves and a formal order would be taken out in the traditional way. What in fact happened was that the Associate's record of proceedings, which was written up to conform with paras 126 and following of my judgment, was entered into the Court's computer and then people assumed that under Part 36 rule 11 of the Uniform Civil Procedure Rules 2005 that was the order and it had been effectively duly entered.

2 I believe that we have not yet got to the stage where the Rules and the Practice coincide. The purpose of Part 36 rule 11 is that where the order is simple or short minutes of order are handed up that needless exertion on behalf of the practitioners in taking out a formal order can be avoided. Unfortunately, it would seem that very loose expressions of the consequences of a judgment, if they find their way on to the Court's computer, may be taken under Part 36 rule 11 as being an order. This raises considerable problems because once that occurs the Judge becomes functus and no-one can make any amendment other than under the slip rule. The Court's record however will contain very loose wording which may not be able to be enforced. Thus, in some cases it may mean that the person who thought they won the litigation is left without any remedy at all. Until Part 36 rule 11 is suitably amended or repealed Judges will need always to order that Part 36 rule 11 does not apply in cases where there is a complicated order whose precise terms are to be settled or alternatively be disinclined to make any order until short minutes are brought in.

3 Accordingly, the second relevant person who is the successful party in this litigation is faced with the enforcement of an entry of a final order which is in very vague terms. The order is, so far as today's motion is concerned, that there is a declaration that it is the owner of the "Sunrise" and an order that encumbrances be removed. There is no specification, as there would have been had a proper order been taken out in the traditional way, setting a time for the encumbrances to be removed, and setting out the procedure on default. The plaintiff has filed a holding appeal, but, to date, has not followed that up, but I believe it has until next Thursday to do so.

4 The second relevant person wishes to realise the vessel because it is essentially a financier. For some months it has been trying to sell the vessel and it has received small offers. It now has an offer for $360,000 which may expire today if not accepted. The second relevant person wishes to accept the offer. However, there is lodged with the appropriate Government authority a notice of encumbrance on behalf of the plaintiff indicating that it has a financial interest.

5 The plaintiff has at all material times been represented by a firm of solicitors practising in Kellyville who call themselves Prider & Co. The evidence is that there have been consistent communications with Prider & Co over the last three months and no communication is ever responded to, and no telephone message is ever replied to. The address for service given in the statement of claim is 20 Garnet Place Kellyville 2155.

6 Yesterday an application was made ex parte for an order that the encumbrances be removed. I was reluctant to make such an order in view of the fact that there is a holding appeal on because the sale of the vessel could seriously affect the potential appellant. I however gave leave for a notice of motion to be filed returnable before me today at 10 o'clock. The motion was to be served by 5pm last night.

7 The solicitor for the second relevant person sent a fax to Mr Prider's office at 4.40pm yesterday and also sent an e-mail communication to his e-mail address. The notification of the address for service did not include either the fax number or the e-mail address of Prider's firm. However, on the first page of the statement of claim and on a notice of motion there was not only Mr Prider's address but also his phone number and fax number. The Court has also received communications from Mr Prider on his letterhead with a phone and a fax number.

8 Under the Uniform Civil Procedure Rules Part 10 rule 5(2)(b) if a person has an address for service and it is a solicitor's office then service may be effected if the notice advising the address for service includes a fax number by faxing a copy of the document to that number. The actual notice of the address for service did not include a fax number. However, it seems to me that in a purposive construction of Part 10 rule 5, a rule designed to eliminate technicalities and reduce the costs of formal service, one reads together the notice of address for service together with the endorsement of where the person filing the document may be found and doing that one reads into the address for service the fax number on the bottom of the first page. That being so, there was service of the notice of motion before 5pm last night.

9 There is also evidence that there were attempts to ring Mr Prider last night and this morning and that an e-mail was sent to him and there has been absolutely no response.

10 The matter now being urgent, full opportunity having been given to make protest about the order, there being no stay ever sought in respect of the judgment that I gave last May, it seems to me that it is now appropriate to make an order under s 94 of the Civil Procedure Act 2005 authorising an officer of the Court to notify the Department of Fair Trading that the encumbrances are withdrawn.

11 I appoint the Duty Deputy Registrar Stephanie Chia as persona designata to execute the document which is attached to the notice of motion on behalf of the plaintiff and otherwise make orders 2 and 3 in the notice of motion. These orders may be taken out forthwith.

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