STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240

FEDERAL COURT OF AUSTRALIA

STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240

Citation: STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240

Parties: STX PAN OCEAN CO LTD v BOWEN BASIN COAL GROUP PTY LTD (ACN 141 187 760), DAVID JOHN THOMSON and BEACH BUILDING AND CIVIL GROUP PTY LTD (ACN 081 893 414)

File number: NSD 561 of 2010

Judge: RARES J

Date of judgment: 12 November 2010

Catchwords: ADMIRALTY – contract of affreightment – voyage charterparty – payment of freight and load port demurrage due within five banking days after signing and release of bills of lading – time when charterer defaults

CONTRACT – TRADE AND COMMERCE – whether representations made by conduct of entry into contract – whether by entering into or signing contract party represents it is and will be ready, willing and able to perform all obligations at time performance is and after it becomes due – where standard-form contract, such as charterparty, not contain such term – use in contract in international trade and commerce – obligation to be ready, willing and able to perform – actual breach established by default in performance – anticipatory breach only established if party actually could not perform at all

TRADE PRACTICES – misleading and deceptive conduct – admiralty and shipping – charterparty –whether officer of charterer made personally, or at all, representation that charterer ready, willing and able to perform both at time of contract and when performance would be due in future – representation not an express or implied term of contract – whether representation made by conduct of negotiating for and signing contract – allegation that party unable ever to perform, or not ready, willing and able to perform, its obligations as and when they fell due at the time of entry into charterparty – allegation must be proved in fact not supposition – Trade Practices Act 1974 (Cth) ss 75B, 52, 82