Bank of Kuwait and the Middle East v The Ship MV “Mawashi Al Gasseem” (No 2) [2007] FCA 815

FEDERAL COURT OF AUSTRALIA

Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" (No 2) [2007] FCA 815 PROCEDURE – operation of O 35 r 2(2)(c) of the Federal Court Rules – whether declaration should be made on deemed admissions – where declaration sought as to validity of mortgage over ship – where declaration affects priority of other claims against ship – where other claimants have had opportunity to intervene – considerations in exercising discretion to make declaration – declaration made Federal Court Rules 1976 (Cth) Federal Court of Australia Act 1976 (Cth) Admiralty Rules 1988 (Cth) Admiralty Act 1988 (Cth) Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427 followed Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 cited Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 cited BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 cited Termijtelen v Van Arkel [1974] 1 NSWLR 525 cited Wallersteiner v Moir [1974] 1 WLR 911 Myer Queenstown Garden Plaza Pty Ltd v City of Adelaide Port Adelaide (1975) 33 LGRA 70 cited Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955 cited BANK OF KUWAIT AND THE MIDDLE EAST v THE SHIP MV "MAWASHI AL GASSEEM" SAD 276 OF 2005

MANSFIELD J

29 MAY 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 OF ORDER: 29 MAY 2007

WHERE MADE: ADELAIDE

THE COURT DECLARES THAT:

1. For the purposes of all proceedings against the Ship MV "Mawashi Al Gasseem" commenced in the Federal Court of Australia and pertaining to the priority in which the proceeds of sale of the said vessel should be paid out, the mortgage over the Ship MV "Mawashi Al Gasseem" in favour of the plaintiff granted by Kuwaiti Saudi Co for Livestock Meat and Fodder as the owner of the said vessel by an agreement in writing dated 24 August 2003 (the mortgage) to secure the said owner's repayment of the amounts due to the plaintiff under the facilities granted by the plaintiff to the owner under the mortgage and an earlier agreement in writing dated 27 July 2003 is valid. THE COURT ORDERS THAT: 2. Judgment be entered for the plaintiff against the defendant in the sum of KD11,145,784/486 for outstanding principal and interest to 18 May 2007. 3. The defendant pay to the plaintiff its costs of the action, including any reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA