Burrows v The Ship 'Merlion' [2024] FCA 220

FEDERAL COURT OF AUSTRALIA

Burrows v The Ship 'Merlion' [2024] FCA 220 File number: QUD 437 of 2023

Judgment of: SARAH C DERRINGTON J

Date of judgment: 13 March 2024

Catchwords: ADMIRALTY AND MARITIME JURISDICTION – jurisdiction in rem – application to strike out pleaded claims on the basis of which ship was arrested – whether claims arising under a trust, Barnes v Addy, a "sham", misleading or deceptive conduct, conversion, and detinue have legal character of proprietary maritime claims as defined by s 4(2)(a) of the Admiralty Act 1988 (Cth) – whether claims in rem and in personam impermissibly combined contrary to s 18 of the Admiralty Act ADMIRALTY AND MARITIME JURISDICTION – practice and procedure – conditional appearance – where claims asserted to be proprietary maritime claims within the meaning of s 4(2)(a) of the Admiralty Act 1988 (Cth) – application to strike out pleaded claims on the basis of which ship was arrested – where defendants entered conditional appearance to challenge jurisdiction – where defendants also brought application for summary judgment – effect of conditional appearance under r 23 of the Admiralty Rules 1988 (Cth) PRACTICE AND PROCEDURE – summary judgment on actions commenced in rem – claim that ship held on trust pursuant to terms of a "higgledy-piggledy" purchase and sale agreement – where deposit to be held on trust – where ship "traded-in" with value assigned to deposit, engine installation, and ex-factory payments – whether reasonable prospects of establishing the ship was a "deposit" – whether if trust established, there are reasonable prospects of establishing the first limb of Barnes v Addy, and claims in conversion and detinue – where alleged "sham" – nature of a "sham" – whether reasonable prospects of establishing elements of a "sham"