FEDERAL COURT OF AUSTRALIA Asafuji (in his capacity as the Foreign Representative of the Sanko Steamship Co., Ltd) v The Sanko Steamship Co., Ltd [2012] FCA 1154 Citation: Asafuji (in his capacity as the Foreign Representative of the Sanko Steamship Co., Ltd) v The Sanko Steamship Co., Ltd [2012] FCA 1154 Parties: HISASHI ASAFUJI IN HIS CAPACITY AS THE FOREIGN REPRESENTATIVE OF THE SANKO STEAMSHIP CO., LTD v THE SANKO STEAMSHIP CO., LTD File number: VID 794 of 2012 Judge: BROMBERG J Date of judgment: 15 October 2012 Catchwords: BANKRUPTCY AND INSOLVENCY – defendant subject to corporate reorganisation proceedings in Japan – interlocutory application under the Cross-Border Insolvency Act 2008 (Cth) for relief to protect assets of the defendant which may enter Australia – prima facie case that elements required for relief made out – balance of convenience favours the grant of relief. Legislation: Cross-Border Insolvency Act 2008 (Cth), Sch 1, (Arts 2, 19, 21) Federal Court (Corporations) Rules 2000, rr 1.8, 2.7, 15A.3, 15A.4, 15A.6 Date of hearing: 15 October 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 5 Counsel for the Plaintiff: Mr P Fary Solicitor for the Plaintiff: DLA Piper Counsel for the Defendant: The defendant did not appear IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 794 of 2012 BETWEEN: HISASHI ASAFUJI IN HIS CAPACITY AS THE FOREIGN REPRESENTATIVE OF THE SANKO STEAMSHIP CO., LTD Plaintiff AND: THE SANKO STEAMSHIP CO., LTD Defendant JUDGE: BROMBERG J DATE OF ORDER: 15 OCTOBER 2012 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1 Leave be given to amend the title of the proceeding forthwith so as to replace the designations 'applicant' and 'respondent' with the designations 'plaintiff' and 'defendant'. 2 Pursuant to articles 19 and 21 of Schedule 1 of the Cross-Border Insolvency Act 2008 (Cth), until the Originating application in this proceeding is decided upon or until further order of the Court: 2.1 No person may enforce a charge on the property of the defendant. 2.2 If: (i) property of the defendant is subject to a lien or pledge; and (ii) property of the defendant is in the lawful possession of the holder of the lien or pledge; (iii) then, the holder of the lien or pledge (iv) may continue to possess the property; and (v) cannot sell the property or otherwise enforce the lien or pledge. 2.3 The owner or lessor of property that is used or occupied by, or in the possession of, the defendant, cannot take possession of the property or otherwise recover it. 2.4 A proceeding in any court against the defendant, or in relation to any of its property, cannot be begun or proceeded with, without the leave of the Court. 2.5 No enforcement process in relation to property of the defendant can be begun or proceeded with, without the leave of the Court. 3. Pursuant to rule 15A.6 of the Federal Court (Corporations) Rules 2000 and pursuant to rule 1.8, the plaintiff is directed within 10 days of this order to: 3.1 publish a notice of the filing of the application in this proceeding in accordance with Form 20 in a daily newspaper circulating generally in Australia; and 3.2 send a notice of the filing of the application in accordance with Form 20 and a copy of the Originating Application to each Australian creditor known to the plaintiff. 4. Pursuant to rule 15A.4(2), the plaintiff is not required to serve the Interlocutory Application in accordance with sub-rule 2.7(2). 5. In respect of rule 15A.3(4), the plaintiff is not required to serve the Originating Application and supporting documents in accordance with sub-rule 2.7(1). 6. Exhibits TM14, TM15, TM16, TM17 and TM18 of the Affidavit of Tadaaki Matsumura of 11 October 2012 and any copies thereof filed with the Court be placed in a sealed enveloped marked 'Not to be opened without the permission of a judge of the Court'. 7. The matter be adjourned for hearing to 9:30 am on 1 November 2012. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 794 of 2012 BETWEEN: HISASHI ASAFUJI IN HIS CAPACITY AS THE FOREIGN REPRESENTATIVE OF THE SANKO STEAMSHIP CO., LTD Plaintiff AND: THE SANKO STEAMSHIP CO., LTD Defendant JUDGE: BROMBERG J DATE: 15 OCTOBER 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application for relief of a provisional nature under Art 19 of the UNCITRAL Model Law on Cross Border Insolvency, which is found in Sch 1 of the Cross-Border Insolvency Act 2008 (Cth)" ("the Act"). 2 On the basis of the affidavits before me, I am satisfied that a prima facie case has been established that: (i) Hisashi Asafuji is a foreign representative of the defendant within the meaning of para (d) of Art 2 of Sch 1 of the Act; (ii) the foreign proceeding referred to in paras 32 to 36 of the affidavit of Tadaaki Matsumura of 11 October 2012 ("the foreign proceedings"), is a foreign proceeding within the meaning of para (a) of Art 2 of Sch 1 of the Act; and (iii) the foreign proceeding is a foreign main proceeding within the meaning of para (b) of Art 2 of Sch 1 of the Act. 3 On the basis of the affidavit material before me and, in particular, the threat there identified that vessels which are the property of the defendant may be at risk of being arrested, I am satisfied that urgent relief, pursuant to Art 19 of Sch 1 of the Act is needed to protect the assets of the defendant and that the relief sought accords with the relief that may be granted pursuant to Art 21 of Sch 1 of the Act. 4 I am satisfied that the balance of convenience favours the grant of the relief sought by the plaintiff. I am further satisfied that the orders proposed for the notification of this proceeding are appropriate. 5 The Court makes the following orders: 1. Leave be given to amend the title of the proceeding forthwith so as to replace the designations 'applicant' and 'respondent' with the designations 'plaintiff' and 'defendant'. 2. Pursuant to articles 19 and 21 of Schedule 1 of the Cross-Border Insolvency Act 2008 (Cth), until the Originating application in this proceeding is decided upon or until further order of the Court: 2.1 No person may enforce a charge on the property of the defendant. 2.2 If: (i) property of the defendant is subject to a lien or pledge; and (ii) property of the defendant is in the lawful possession of the holder of the lien or pledge; (iii) then, the holder of the lien or pledge (iv) may continue to possess the property; and (v) cannot sell the property or otherwise enforce the lien or pledge. 2.3 The owner or lessor of property that is used or occupied by, or in the possession of, the defendant, cannot take possession of the property or otherwise recover it. 2.4 A proceeding in any court against the defendant, or in relation to any of its property, cannot be begun or proceeded with, without the leave of the Court. 2.5 No enforcement process in relation to property of the defendant can be begun or proceeded with, without the leave of the Court. 3. Pursuant to rule 15A.6 of the Federal Court (Corporations) Rules 2000 and pursuant to rule 1.8, the plaintiff is directed within 10 days of this order to: 3.1 publish a notice of the filing of the application in this proceeding in accordance with Form 20 in a daily newspaper circulating generally in Australia; and 3.2 send a notice of the filing of the application in accordance with Form 20 and a copy of the Originating Application to each Australian creditor known to the plaintiff. 4. Pursuant to rule 15A.4(2), the plaintiff is not required to serve the Interlocutory Application in accordance with sub-rule 2.7(2). 5. In respect of rule 15A.3(4), the plaintiff is not required to serve the Originating Application and supporting documents in accordance with sub-rule 2.7(1). 6. Exhibits TM14, TM15, TM16, TM17 and TM18 of the Affidavit of Tadaaki Matsumura of 11 October 2012 and any copies thereof filed with the Court be placed in a sealed enveloped marked 'Not to be opened without the permission of a judge of the Court'. 7. The matter be adjourned for hearing to 9:30 am on 1 November 2012. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 22 October 2012