Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 Citation: Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
Appeal from: STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 3) [2010] FCA 1374
Parties: DAVID JOHN THOMSON v STX PAN OCEAN CO LTD
File number: NSD 1767 of 2010
Judges: GREENWOOD, MCKERRACHER AND REEVES JJ
Date of judgment: 29 February 2012
Catchwords: ADMIRALTY – contract of affreightment – voyage charterparty – payment of freight and load port demurrage due within five banking days after signing and release of bills of landing – time when charterer defaults - separate liability of director in addition to the charterer for ongoing representations as to capacity to pay TRADE PRACTICES – misleading and deceptive conduct – officer of charterer made post-contractual representations that the charterer was imminently "ready, willing and able" to perform the contract when it was insolvent – delay in termination of the charterparty – logical Gould v Vaggelas inference of reliance on misleading and deceptive representation DAMAGES – measure of damages –damages for loss of use of vessel to be assessed by determining what she would have earned but for the tortious conduct – plaintiff's failure to adduce any evidence of a market or alternative charter rate during the period of contract – appropriate for question of damages remitted to primary judge to receive evidence on loss of profit caused by breach
Legislation: Trade Practices Act 1974 (Cth) ss 52, 75B, 82
Cases cited: Admiralty Commissioners v S.S. Valeria [1922] 2 AC 242 Banque Commerciale S.A. (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82 Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64 Dare v Pulham (1982) 148 CLR 658 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 Gould v Vaggelas (1984) 157 CLR 215 The Hebridean Coast [1961] AC 545 Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 Nauru Local Government Council v NZ Seamen's Industrial Union of Workers [1986] 1 NZLR 466 STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240 The Argentino (1889) 14 App Cas 519 The Mediana [1900] AC 113 Water Board v Maustakas (1988) 180 CLR 491
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