FEDERAL COURT OF AUSTRALIA Renault SAS v Nissan Motor Car Carrier Co Ltd [2007] FCA 1068 RENAULT SAS AND VEHICLE DISTRIBUTORS AUSTRALIA PTY LTD v NISSAN MOTOR CAR CARRIER CO LTD, HöEGH FLEET SERVICES AS, WOOD STREET LEASING LTD AND LEIF HöEGH & CO SHIPPING AS NSD 2269 OF 2006 ALLSOP J 17 JULY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2269 OF 2006 BETWEEN: RENAULT SAS First Plaintiff VEHICLE DISTRIBUTORS AUSTRALIA PTY LTD Second Plaintiff AND: NISSAN MOTOR CAR CARRIER CO LTD First Defendant HöEGH FLEET SERVICES AS Second Defendant WOOD STREET LEASING LTD Third Defendant LEIF HöEGH & CO SHIPPING AS Fourth Defendant JUDGE: ALLSOP J DATE OF ORDER: 17 JULY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The first and second plaintiffs have leave to amend the statement of claim and application to add Leif Höegh & Co Shipping AS as fourth defendant and to file the amended statement of claim and application. 2. The first and second plaintiffs pay the costs, if any, thrown away by reason of the amendment. 3. Pursuant to Order 8 Rule 2 the first and second plaintiffs have leave to serve, by a lawyer in Norway, the amended statement of claim, amended application, these orders and the reasons for judgment of Allsop J of 17 July 2007 on the fourth defendant in Norway. 4. The Court directs that the first and second plaintiffs serve with the amended statement of claim, amended application and these short minutes of order certified translations of those documents in the Norwegian language. 5. The proceedings are listed for further directions at 9:30 am on 31 August 2007 for further directions. 6. The Court notes that the agreement of the plaintiffs and first to third defendants that the proceedings are to proceed to mediation on a date to be allocated in September 2007. 7. The costs of the notice of motion dated 28 June 2007 are to be the plaintiffs' costs of the proceeding. 8. The parties have liberty to apply on 3 days' notice. 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 2269 OF 2006 BETWEEN: RENAULT SAS First Plaintiff VEHICLE DISTRIBUTORS AUSTRALIA PTY LTD Second Plaintiff AND: NISSAN MOTOR CAR CARRIER CO LTD First Defendant HöEGH FLEET SERVICES AS Second Defendant WOOD STREET LEASING LTD Third Defendant LEIF HöEGH & CO SHIPPING AS Fourth Defendant JUDGE: ALLSOP J DATE: 17 JULY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There is before the Court an amended notice of motion under which the plaintiffs seek leave to join and to serve out of the jurisdiction the proposed fourth defendant, Leif Höegh & Co Shipping AS. 2 On the material before me, the following is apparent. First, the plaintiffs claim damages for vehicles carried by sea to Australia, which were damaged in the hold of the ship in which they were stowed when other cargo of some size broke loose from its restraints. The motor vehicles were shipped under a sea waybill, though the precise documentary and contractual relationships amongst the various defendants is not clear. None of the existing three defendants was the actual carrier of the cars. It is unnecessary to describe the precise place of each of the existing defendants in the sale and carriage adventure. 3 The company which I have named, which I will give leave to join as the fourth defendant, has been shown on the material before me to have been in possession of the vessel pursuant to a lease agreement from the third defendant, Wood Street Leasing Limited. 4 The document which has been provided to me on the application is described as a lease agreement in respect of hull number 4418 at Daewoo Corporation and Daewoo Heavy Industries Limited. The lease is between the fourth defendant, as lessee, and the third defendant, being a company incorporated in England. From a perusal of the lease, the third defendant would appear to be an entity involved in the financing of the vessel to the fourth defendant. 5 The agreement is dated 4 December 1998. It is for a primary period of 25 years, with a capacity to continue the lease. The terms of the lease appear to lead to the characterisation of the arrangement as a demise or bareboat charter. Though there is a restriction on subleasing, the lessee has full possession and control of the ship, has the right to crew the ship, and otherwise has full and exclusive use, control and command of the ship. 6 In those circumstances, there is a strong and prima facie case, on this material, that the fourth defendant was in possession of the ship at the time of this carriage and so, in law, a bailee of the goods. In those circumstances, and given the balance of the pleading, there is ample basis for an order that the fourth defendant be served outside the jurisdiction. 7 The evidence reveals that the fourth defendant is a Norwegian company. Norway is a Hague Convention country. Inquiries with the Department of Foreign Affairs and Trade have indicated to the plaintiffs, and they have informed me, that service by private agent is permitted in Norway as long as relevant translations of constituent documents are made. 8 I have been provided with a set of short minutes. With slight variations, I propose to make orders in their terms granting leave to serve the fourth defendant in Norway. I propose to replace the word "solicitor" in order 3 with the word "lawyer." 9 For those reasons, I make orders in accordance with the short minutes, initialled by me, dated today, and placed with the papers. 10 In setting these reasons I have made one amendment to the orders reflecting the fact that order 6 is a matter of merely noting the agreement of the parties. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 2 August 2007 Counsel for the Plaintiffs: Mr E Cox Solicitor for the Plaintiffs James Tuite & Associates Date of Hearing: 17 July 2007 Date of Judgment: 17 July 2007