FEDERAL COURT OF AUSTRALIA Lampson (Australia) Pty Limited v Australian Crane and Machinery Pty Limited [2007] FCA 1043 LAMPSON (AUSTRALIA) PTY LIMITED v AUSTRALIAN CRANE AND MACHINERY PTY LIMITED AND AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED NSD 1297 OF 2007 ALLSOP J 9 JULY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1297 OF 2007 BETWEEN: LAMPSON (AUSTRALIA) PTY LIMITED Plaintiff AND: AUSTRALIAN CRANE AND MACHINERY PTY LIMITED First Defendant AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED Second Defendant JUDGE: ALLSOP J DATE OF ORDER: 9 JULY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. On or before 4.00 pm on Tuesday, 10 July 2007, the first defendant exercise its best endeavours to produce to the solicitors for the plaintiff any copy or copies of the original bills of lading referred to in the affidavit of John Robert Lee sworn 9 July 2007 and provided to the Court in draft on 6 July 2007, being copy or copies containing (if there be any) erasures, interlineations or alterations. 2. If said copy or copies are not produced pursuant to order 1, the first defendant exercise its best endeavours to file and serve on or before 4.15 pm on Tuesday, 10 July 2007 an affidavit explaining why it cannot produce such copies; if production of the affidavit is not possible the first defendant provide an explanation at the adjourned hearing contemplated by order 3. 3. The proceeding stand over to 5.00 pm on Tuesday, 10 July 2007, at which time: (a) the first defendant be in a position to provide an explanation for the non-provision of the original bills of lading to the plaintiff; (b) the parties identify the basis for any arrangement to hold the position pending trial or resolution of the proceeding; (c) failing (b), the plaintiff be in a position to identify what interim orders it seeks; and (d) directions for the conduct of the matter will be made. 4. Liberty to apply on two hours' notice. 5. Costs of Friday, 6 July 2007 and today be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1297 OF 2007 BETWEEN: LAMPSON (AUSTRALIA) PTY LIMITED Plaintiff AND: AUSTRALIAN CRANE AND MACHINERY PTY LIMITED First Defendant AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED Second Defendant JUDGE: ALLSOP J DATE: 9 JULY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In this matter, short service was granted on Friday 6 July 2007 in relation to what was seen to be a possibly urgent position of the plaintiff in relation to the sale of three cranes from Newcastle, Mackay and Dampier. The first defendant is the purchaser of the cranes. It is unclear to me at the present time whether or not there is any urgency in the issues that are being or will be litigated. Apparently the cranes have been onsold to a party outside Australia. All three cranes were shipped from the three ports of loading for discharge at Mumbai. I was informed this afternoon at the return of the matter in the list, that the original bills had been used to onsell the cranes and that it was likely that some position would be able to be reached to hold the position until trial. 2 The plaintiff has propounded certain orders this afternoon which were not agreed. I have varied those orders significantly. One of the orders which I propose to make requires the defendant to be in a position tomorrow afternoon to provide an explanation for the non-provision of the original bills of lading to the plaintiff. As I would apprehend the matter that is, or may be said to be, the foundation of a claim by the plaintiff. 3 The plaintiff apparently sold the cranes to the first defendant on a basis that, I was told today, the first defendant would arrange the shipping of the cranes, the cranes having been apparently delivered to the first defendant. The first defendant, I assume, took charge of the cranes and arranged for their shipment. The bills of lading were apparently issued to the first defendant as buyer thereby placing it in control of the goods. I am informed by the plaintiff that the arrangement was such as to require the provision of the original bills to the plaintiff so that it could arrange payment for itself through the relevant letter or letters of credit that had been established. 4 At the moment the plaintiff is in the position of not having been paid and having let the goods out of its control and those goods have now been onsold. Whether or not these matters reflect on the commercial wisdom of the arrangement, or reflect a breach of contractual promise by the defendant, I do not understand at the moment. I wish to get to the bottom of this case as quickly as possible in the exercise of the procedure of this Court in dealing with Admiralty and maritime matters. It may simply be a dispute about a contract for sale of goods carried on board the vessel. If so, it may be that the plaintiff has let its position be prejudiced by allowing the goods and the bill of lading to leave Australia in the same direction. However, as I would understand what has been put to me, the plaintiff claims that there has been a contractual wrong committed to it in the failure of the first defendant to supply it (the plaintiff) with the original bills of lading. Therefore, in the efficient and hopefully timely despatch of this matter I wish to understand what the issues are. 5 For that reason I have made order 3 in relation to the provision of information at an adjourned directions hearing tomorrow afternoon. The long and short of order 3 is that I want to understand, with precision, from both sides, what is going on in this matter; why the original bills were not given to the plaintiff. If it be the case that the first defendant says that it was not obliged to give the bills to the plaintiff that will be an explanation, but I seek to understand whether or not there has been or has not been a contractual breach as alleged from the bar table by counsel for the plaintiff. Once that matter is clarified it may or may not be a relevant consideration to the holding of the position by the parties pending resolution of the matter. Alternatively, and failing any agreed holding of the position, I want to understand what interim relief, if any, the plaintiff seeks. 6 In the light of all those matters I will conduct a further directions hearing tomorrow identifying steps to be taken to bring this matter to trial if it cannot be resolved by agreement. For those reasons I make the following orders: 1. On or before 4.00 pm on Tuesday, 10 July 2007, the first defendant exercise its best endeavours to produce to the solicitor for the plaintiff any copy or copies of the original bills of lading referred to in the affidavit of John Robert Lee sworn 9 July 2007 and provided to the Court in draft on 6 July 2007, being copy or copies containing (if there be any) erasures, interlineations or alterations. 2. If said copy or copies are not produced in accordance with order (1), the first defendant exercise its best endeavours to file and serve on or before 4.15 pm on Tuesday, 10 July 2007 an affidavit explaining why it cannot produce such copies; if production of the affidavit is not possible the first defendant provide an explanation at the adjourned hearing contemplated by order (3). 3. The proceedings stand over to 5.00 pm on Tuesday, 10 July 2007, at which time: (a) the first defendant be in a position to provide an explanation for the non-provision of the original bills of lading to the plaintiff; (b) the parties identify the basis for any arrangement to hold the position pending trial or resolution of the proceeding; (c) failing (b), the plaintiff be in a position to identify what interim orders it seeks; and (d) directions for the conduct of the matter will be made. 4. Liberty to apply on two hours' notice. 5. Costs of Friday, 6 July and today be reserved. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 17 July 2007 Counsel for the Plaintifft: Mr G Underwood and Ms B Nolan Solicitor for the Plaintiff: Hewitts Commercial Lawyers Counsel for the First Defendant: Ms M Gerace Solicitor for the First Defendant: Efron & Associates Date of Hearing: 9 July 2007 Date of Judgment: 9 July 2007