Keyman Trans Limited v Registrar of Ships HC Wellington CIV 2011-485-1947

[2011] NZHC 1644

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-1947

UNDER  the Ship Registration Act 1992

IN THE MATTER OF     an Application for an Order in terms of section 69 of the Ship Registration Act

1992 for rectification of the Ships Register

BETWEEN  KEYMAN TRANS LIMITED Applicant

ANDTHE REGISTRAR OF SHIPS First Respondent

ANDLUCKY FISHING LIMITED Second Respondent

Hearing:         31 October 2011

Counsel:         R Stewart for the Applicant

No appearance for the Respondents

Judgment:      31 October 2011

JUDGMENT OF MALLON J

Introduction

[1]      The applicant seeks an order directing the Registrar of Ships to rectify the Register   to   reflect   that   the   correct   owner   of   the   vessel,   Naucissa   Star, Number 179734,  is  Keyman Trans  Limited.    The  applicant  also  seeks  an  order granting leave to bring this application by originating application.   The first respondent does not oppose the orders sought and abides the decision of the Court. The second respondent was served on 5 October 2011 and no notice of opposition

has been filed.

KEYMAN TRANS LIMITED v THE REGISTRAR OF SHIPS HC WN CIV 2011-485-1947 31 October 2011

The facts

[2]      The affidavits from the Registrar of Ships and from Mr Park (a director of the applicant) set out the background.

[3]      In June 2010 the applicant purchased the vessel.  After effecting settlement, the applicant was in possession of the vessel.   When the vessel was undergoing alterations for fishing purposes, it was stolen.  The police located the vessel.  At that time Lucky Fishing Limited provided information showing that it was the registered owner of the vessel.   The registration had been entered on 17 September 2010, pursuant to a bill of sale dated 20 August 2010 transferring ownership of the vessel from Galeforce Limited to Lucky Fishing Limited.

[4]      A dispute arose as to the ownership of the vessel as between Lucky Fishing Limited and the applicant.  That dispute was resolved in the Auckland District Court by consent, the applicant and Lucky Fishing Limited both being represented by counsel.   The consent orders declared that the applicant “owns and is entitled to immediate possession” of the vessel and Lucky Fishing Limited was required to deliver the vessel up to the applicant.

[5]      The  Registrar  was  advised  that  Naucissa  Star  was  not  owned  by  Lucky Fishing Limited.  Correspondence ensued between the applicant and the Registrar as to the procedure for changing the registration details.  The Registrar took the view that it was necessary to apply to the High Court to seek rectification of the Register pursuant to s 69 of the Ship Registration Act 1992.

Power to direct rectification

[6]      Section 69 of the Ship Registration Act 1992 provides (as relevant):

(1)      Where

...

(d)      An entry wrongly exists in the Register; or

(e)      There is an error or defect (other than a clerical error or obvious mistake) in an entry in the Register, --

A person aggrieved or the Registrar may apply to the High Court for rectification of the Register.

...

(3)      The Court may, in proceedings under this section, --

(a)      Decide any question that is necessary or expedient to decide in connection with the rectification of the Register; and

(b)      Make such order as it thinks fit directing the rectification of the Register.

[7]      The applicant submits that it is in the interests of justice to make an order directing rectification of the Register either because the entry is wrong or is an error or defective.   The applicant referred to the High Court decision in Pah Farm Developments Limited and Rhodo Trust Limited v The Registrar of Ships HC Auckland CIV 2006-404-6145, 30 October 2006 as an illustration of the Court’s exercise of the power in s 69 of the Ship Registration Act.  That application had also been made by way of originating application.

[8]      I accept that the entry is either wrong or an error because Keyman Trans Limited is the owner of the vessel.  I understand from the Registrar of Ships that she considers this to be the appropriate way to correctly record the vessel’s owner in light of the events which have occurred.  As grounds have been made out for the orders, and they are not opposed, I consider that the orders sought are appropriate

Result

[9]      Accordingly I make the following orders:

(a)       An order granting leave to bring this matter by way of originating application;

(b)      An order under s 69 of the Ship Registration Act 1992 directing the

Registrar of Ships to rectify the Register to reflect the correct owner

of the vessel, Naucissa Star, number 179734,  to be the applicant, Keyman Trans Limited.

[10]     The applicant does not seek costs.

Mallon J