Bank of Kuwait and the Middle East v The Ship MV “Mawashi Al Gasseem” [2007] FCA 550

FEDERAL COURT OF AUSTRALIA

Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" [2007] FCA 550

PROCEDURE – application to strike out defence as an abuse of process – where plaintiff adduces uncontroverted evidence to show ground of defence not genuinely arguable – where no response from defendant – defence struck out KC Park Safe (SA) Pty Ltd v Adelaide Terrace Investments Pty Ltd (unreported, Mansfield J, 17 September 1998) cited Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 cited Remington v Scoles [1897] 2 Ch D 1 cited Williams v Spautz (1992) 174 CLR 509 discussed Re Elders Australia Ltd; Super John Pty Ltd v Futuris Rural Pty Ltd (No 2) (unreported, Foster J, 24 December 1997) cited Munnings v Australian Government Solicitor (1994) 118 ALR 385 cited Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited National Mutual Holdings v The Sentry Corporation (unreported, 27 September 1989) cited Bank of South Australia v Ferguson (1998) 192 CLR 248 cited Colgate-Palmolive Co v Cussons Pty ltd (1993) 46 FCR 225 cited BANK OF KUWAIT AND THE MIDDLE EAST v THE SHIP MV "MAWASHI AL GASSEEM" SAD 276 OF 2005

MANSFIELD J

11 APRIL 2007

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 276 OF 2005

BETWEEN: BANK OF KUWAIT AND THE MIDDLE EAST

Plaintiff

AND: THE SHIP MV "MAWASHI AL GASSEEM"

Defendant

JUDGE: MANSFIELD J

DATE: 11 APRIL 2007

PLACE: ADELAIDE

REASONS FOR DECISION 1 These are my reasons for orders made on 11 April 2007 striking out the defence and consequential orders. 2 The proceedings were commenced by the plaintiff on 19 October 2005. It seeks an order that a mortgage dated 24 August 2003 (the mortgage) granted over the defendant (the vessel) by its owner Kuwaiti Saudi Co for Livestock Meat and Fodder (the owner) is valid. It also seeks payment of the amounts owing to it by the owner under an agreement of 27 July 2003 by which the plaintiff agreed to provide certain credit facilities to the owner and under the mortgage. Under the mortgage, the owner acknowledged its then indebtedness to the plaintiff at KD27,591,000. As at 30 November 2005, the plaintiff claimed the outstanding indebtedness (allowing for payments made, and interest) was KD9,579,113/689. It also claimed ongoing interest. 3 The plaintiff also seeks an order that the monies owing to it be paid, to the extent they are available to do so, out of the monies held by the order of the Court following the sale of the vessel.