OOO DV Ryboprodukt v UAB Garant - [2008] NZCA 136

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA52/2008
[2008] NZCA 136

BETWEENOOO DV RYBOPRODUKT

Appellant

ANDUAB GARANT

Respondent

Hearing:30 April 2008

Court:Hammond, Chambers and Ellen France JJ
Counsel:P W David and M Heard for Appellant

B C Versfelt and K J Sparrow for Respondent

Judgment:26 May 2008 at 4 pm

JUDGMENT OF THE COURT

A The appeal is dismissed, save in the respect noted in order C.
BThe stay of the proceedings (High Court, Auckland, CIV2006-404-4167) is vacated.
CThe appellant’s notice of opposition to the respondent’s application for sale before final judgment is reinstated.
DThe appellant must pay to the respondent interim costs in this court of $6,000, plus usual disbursements. We certify for second counsel.
ELiberty is reserved to the respondent to apply in due course for “top-up” costs in the event it establishes in the High Court that the appellant agreed to pay the respondent’s costs on an indemnity basis.

REASONS OF THE COURT
(Given by Chambers J)
Table of Contents
Para No

Arrest of the Aleksandr Ksenofontov  [1]
Issues on the appeal  [9]
Was the notice of proceeding a nullity?  [16]
Was there a proper basis for the exercise of the jurisdiction to
re-arrest in this case?  [32]
           The claim was no longer in the High Court’s admiralty jurisdiction[35]
           Wrong procedure  [49]
           Failure to disclose material facts  [58]
           Adequate security had been supplied  [64]
           Conclusion  [77]
Was Williams J right to dismiss Ryboprodukt’s opposition to the
application for sale?  [79]
The ongoing costs of arrest  [83]
Result  [86]
Arrest of the Aleksandr Ksenofontov
[1]       UAB Garant, the respondent, is a shipyard and repairer based in Klaipeda, Lithuania. In 2005, Garant undertook repair work on the Aleksandr Ksenofontov, a Russian‑flagged shipping vessel owned by OOO DV Ryboprodukt, the appellant. According to Garant, the original contract sum was €150,000, but, in the course of repairs, additional work was required. The total repair bill eventually came to over €600,000.
[2]       According to Garant, Ryboprodukt accepted the vessel in good order on 1 December 2005. Garant allowed the vessel to leave its premises even though it had been paid only in part; €356,214 remained outstanding. According to Garant, Ryboprodukt promised to pay the balance by instalments.
[3]       Ryboprodukt did not pay. Eventually, Garant lost patience. When the Ksenofontov was at Lyttelton Wharf, Garant brought a proceeding in rem against the ship in the High Court’s admiralty jurisdiction. At the same time, Garant applied to arrest the ship. That application was granted. In due course, an agreement was entered into between the parties under which Ryboprodukt made a part payment on the claim and agreed to pay the balance in September and October 2006. In return, the vessel was released from arrest, although Garant reserved the right to seek the re‑arrest of the vessel should Ryboprodukt default.
[4]       Ryboprodukt did not pay the balance. Garant sought the vessel’s re-arrest, which was granted. A further agreement was made, under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading OOO DV Ryboprodukt v UAB Garant

Details

AGLC: OOO DV Ryboprodukt v UAB Garant [2008] NZCA 136
Case: [2008] NZCA 136
Decision Date: 26 May 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by OOO DV Ryboprodukt, the owner of the Aleksandr Ksenofontov, against the High Court's decision to uphold the arrest of its ship by UAB Garant, a Lithuanian shipyard. The primary issue was whether the High Court had the jurisdiction to order the re-arrest of the ship a fourth time. Other issues included whether the notice of proceeding was a nullity due to an incorrect claim for costs, the adequacy of the security provided, and whether Williams J was correct to dismiss Ryboprodukt's opposition to Garant's application for sale. The Court found that the notice of proceeding was not a nullity, and there was a proper basis for the exercise of the jurisdiction to re-arrest. The Court also reinstated Ryboprodukt's notice of opposition to Garant's application for sale, which had been dismissed by Williams J. The appeal was dismissed, with the stay of the proceedings vacated and Ryboprodukt ordered to pay interim costs of $6,000.

Orders