Kim v Daebo International Shipping Co Ltd [2015] FCA 684

FEDERAL COURT OF AUSTRALIA

Kim v Daebo International Shipping Co Ltd [2015] FCA 684 Citation: Kim v Daebo International Shipping Co Ltd [2015] FCA 684

Parties: CHANG-JUNG KIM, IN HIS CAPACITY AS FOREIGN REPRESENTATIVE OF DAEBO INTERNATIONAL SHIPPING CO LTD v DAEBO INTERNATIONAL SHIPPING CO LTD

File number: NSD 382 of 2015

Judge: RARES J

Date of judgment: 8 May 2015

Catchwords: BANKRUPTCY AND INSOLVENCY – ADMIRALTY – cross-border insolvency – recognition of foreign proceeding under Art 17(1) of the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law – recognition of foreign main proceeding pursuant to Art 17(2) – recognition of foreign representative under Art 2(d) – identification of debtor's centre of main interests – whether upon recognition of foreign proceeding court should exercise power under Art 21(1) to prohibit commencement of or stay continuation of actions concerning debtor's assets, obligations, rights or liabilities – scope of stay or suspension – whether creditor with right to bring or continue action in rem under Admiralty Act 1988 (Cth) for maritime lien or proprietary or secured maritime claim should be prohibited or stayed ADMIRALTY –whether plaintiff with right to bring or continue action in rem under Admiralty Act 1988 (Cth) for maritime lien, or proprietary or secured maritime claim ought be automatically prohibited or stayed from doing so – circumstance where action in rem enforceable notwithstanding stay under Cross-Border Insolvency Act 2008 (Cth) and Model Law – creation of secured interest prior to or on commencement of action in rem – requirement following decision in Yu v STX Pan Ocean Co Ltd (2013) 233 FCR 189 to ensure that, prior to issue of arrest warrant in a proceeding in rem, a judge considers whether plaintiff's claim based on existing secured interest justifying issue of warrant