Poralu Marine Australia Pty Ltd v MV Dijksgracht (Costs) [2022] FCA 1184

Federal Court of Australia

Poralu Marine Australia Pty Ltd v MV Dijksgracht (Costs) [2022] FCA 1184 File numbers: NSD 139 of 2020 NSD 96 of 2021

Judgment of: STEWART J

Date of judgment: 5 October 2022

Catchwords: COSTS – separate questions – whether there is any reason to depart from the usual rule that costs follow the event

Division: General Division

Registry: New South Wales

National Practice Area: Admiralty and Maritime

Number of paragraphs: 11

Date of last submission/s: 30 September 2022

Date of hearing: Determined on the papers

Counsel for the Plaintiff: E G H Cox SC and M D Swanson

Solicitor for the Plaintiff: Henry William Lawyers

Counsel for the Defendant: J S Emmett SC and C L W Street

Solicitor for the Defendant: Holding Redlich

ORDERS NSD 139 of 2020

BETWEEN: PORALU MARINE AUSTRALIA PTY LTD Plaintiff

AND: THE SHIP "MV DIJKSGRACHT" Defendant

NSD 96 of 2021

BETWEEN: PORALU MARINE AUSTRALIA PTY LTD Plaintiff

AND: SPLIETHOFF TRANSPORT BV First Defendant

REDERIJ DIJKSGRACHT

Second Defendant

AND BETWEEN: SPLIETHOFF TRANSPORT BV Cross-Claimant

AND: PORALU MARINE AUSTRALIA PTY LTD Cross-Respondent

order made by: STEWART J DATE OF ORDER: 5 OCTOBER 2022

THE COURT ORDERS THAT:

1. The plaintiff pay the defendants' costs of the separate questions. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

Introduction 1 This judgment concerns the costs of deciding the separate questions in the two proceedings as dealt with in my reasons for judgment published as: Poralu Marine Australia Pty Ltd v MV Dijksgracht [2022] FCA 1038. 2 The essential outcome on the separate questions is that the defendants to the proceedings are entitled to limit any liability that they may have to the plaintiff to the lowest level contended for by them, namely £100 to per package. That outcome is entirely in the defendants' favour in the sense that they established limitation at its lowest possible level and that it is available in answer to the claims on the contract of carriage as well as in bailment and tort. That means that the owner of the vessel, which is not a party to the contract, can also rely on the limitation defence by operation of the Himalaya clause. 3 Following the usual rule that the costs follow the event, the defendants would be entitled to their costs of the determination of the separate questions. That is the approach that the defendants embrace. 4 The plaintiff, Poralu, makes two submissions against that approach. First, it submits that the most appropriate order is that the defendants pay Poralu's costs up until the time of the amendment of their defence on 10 February 2022, and that Poralu pay the defendants' costs thereafter. In the alternative, Poralu submits that it ought to pay only 50% of the defendants' costs "as a reflection of the unique circumstances of the proceedings and reflecting the relevant success of the parties, at discreet and meaningful points in this particular litigation". I will address each argument in turn.