Ozmen Entertainment Group Pty Ltd v Neptune Hospitality Pty Ltd (No 7) [2021] FCA 985

Federal Court of Australia

Ozmen Entertainment Group Pty Ltd v Neptune Hospitality Pty Ltd (No 7) [2021] FCA 985 File number(s): NSD 1424 of 2017

Judgment of: RARES J

Date of judgment: 13 August 2021

Catchwords: PRACTICE AND PROCEDURE – whether entered order should be varied under r 39.05(e) Federal Court Rules 2011 because it did not reflect the intention of the Court

Legislation: Federal Court Rules 2011 r 39.05(e)

Cases cited: Burrell v The Queen (2008) 238 CLR 218 McDonald v Dennys Lascelles Limited (1933) 48 CLR 457 Neptune Hospitality Pty Ltd v Ozmen Entertainment Pty Ltd (2020) 375 ALR 489 Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd (2019) 369 ALR 644

Division: General Division

Registry: New South Wales

National Practice Area: Admiralty and Maritime

Number of paragraphs: 22

Date of hearing: 13 August 2021

Counsel for the Plaintiffs: Mr J Cook

Solicitor for the Plaintiffs: Hammond Nguyen Turnbull

Solicitor for the Defendant: Barringer Leather Lawyers

ORDERS NSD 1424 of 2017

BETWEEN: OZMEN ENTERTAINMENT GROUP PTY LTD First Plaintiff

KANKI SEA TOURISM HOSPITALITY & ENTERTAINMENT PTY LTD Second Plaintiff

AND: NEPTUNE HOSPITALITY PTY LTD Defendant

order made by: RARES J DATE OF ORDER: 13 AUGUST 2021

THE COURT ORDERS THAT:

1. Order 13 made on 9 May 2019 be amended to state: "Kanki pay Neptune 50% of the following costs, calculated in accordance with the JVA: (a) the Shared Costs, as specifically set out in Schedule 1 of the JVA (being the amounts identified as the "Initial Loan" and "Further Costs"); (b) the RINA Survey Fee (as defined in the JVA) referred to in clause 9(d)(ii) of the JVA; (c) the Generator Costs (as defined in the JVA) referred to in clause 9(d)(iii) of the JVA; (d) the Awning (as defined in the JVA) referred to in clause 9(e) of the JVA; and (e) any costs of plant and equipment on the vessel required to conduct the joint venture business, incurred as contemplated under clause 9(d)(iv) of the JVA by Neptune between 22 October 2015 through to 25 July 2017 (being the date the JVA was terminated), with all such amounts to be assessed." 2. Order 2(e) made on 27 November 2020 be amended to state: "e. The amounts, if any, due (including interest) by Kanki to Neptune pursuant to order 13 made on 9 May 2019 as amended on 13 August 2021." Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.