Hi-Fert Pty Ltd & Anor v Kiukiang Maritime Carriers Inc & Anor [1998] FCA 1640

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 575 of 1998

BETWEEN: HI-FERT PTY LIMITED

First AppELLant

CARGILL FERTILIZER INC

Second AppELLant

AND: KIUKIANG MARITIME CARRIERS INC

First Respondent

WESTERN BULK CARRIERS (AUSTRALIA) PTY LIMITED

Second Respondent

JUDGES: BEAUMONT, BRANSON AND EMMETT JJ.

DATE OF ORDER: 18 DECEMBER 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be allowed in part. 2. The orders made by the trial Judge on 12 December 1997 be set aside, and in lieu thereof: (a) order that the first respondent's notice of motion dated 25 October 1996 be dismissed; order that the appellants pay the first respondent's costs of the separate constitutional issue; otherwise order that the first respondent pay the appellants' costs of the motion; costs to be set off. (b) on the condition stated in para (c) below, order that so much of the proceedings as involves the determination of the matters alleged in para 22 and 25 to 29 inclusive of the amended statement of claim filed on 6 February 1997 be stayed and that the parties be referred to arbitration in respect of those matters. (c) the condition referred to in para (b) above is that any arbitration in respect of the matters referred to in para (b) be adjourned until after the determination of these proceedings against both respondents including any appeal. (d) order that otherwise the second respondent's notice of motion dated 25 October 1996 be dismissed. (e) order that the appellants pay the second respondent's costs of the separate constitutional issue; otherwise order that the second respondent pay the appellants' costs of the motion; costs to be set off. 3. The appellants pay the respondents' costs of the argument of the constitutional issue on the appeal; otherwise the respondents pay the costs of the appeal; costs to be set off. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.