Banwell v Ship The Sydney Sunset [2001] FCA 1039

FEDERAL COURT OF AUSTRALIA

Banwell v Ship "The Sydney Sunset" [2001] FCA 1039

NEVILLE ROSS BANWELL v THE SHIP "THE SYDNEY SUNSET" N 98 of 2001 TAMBERLIN J SYDNEY 3 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 98 OF 2001

IN ADMIRALTY

BETWEEN: NEVILLE ROSS BANWELL

PLAINTIFF/RESPONDENT

AND: THE SHIP "THE SYDNEY SUNSET"

(formerly "THE LUBS")

DEFENDANT/APPLICANT

JUDGE: TAMBERLIN J

DATE: 3 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this matter, the action was commenced on the basis of a claim in rem. I have decided, however, that there is no sustainable action in rem against the vessel and all that remains in the proceedings is an in personam debt claim against one of the persons who appeared in the proceeding before me. 2 Accordingly, because I have found that there is no in rem claim, I consider that this is an appropriate matter for remittal to a State court. It seems to me, having regard to the amount involved, that the appropriate court to which the matter should be remitted is the District Court of New South Wales. 3 The proceeding is still on foot between the parties as regards the debtclaim. I make no order as to costs in relation to the remittal but leave that for the determination of the Judge who hears the matter in the District Court. Of course, the issue of costs in the in personam claim is for the determination of the Judge hearing that claim. The question as to the future progress of the matter is for the District Court to determine.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 23 August 2001

Solicitor for the Plaintiff: Neville R Banwell & Associates

Solicitor for the Defendant: O'Reilly Sever & Co