Nick Scali Ltd v Lion Global Forwarding Pty Ltd [2024] FCA 1247

Federal Court of Australia

Nick Scali Ltd v Lion Global Forwarding Pty Ltd [2024] FCA 1247 File number: NSD 1495 of 2024

Judgment of: STEWART J

Date of judgment: 28 October 2024

Catchwords: SHIPPING AND NAVIGATION – where applicant seeks urgent release of shipping containers held by the first respondent in exchange for payment into court as security of amounts owing by the applicant to the first respondent – contractual general and particular possessory lien – whether there is a serious question to be tried as a basis for interlocutory relief

Legislation: Admiralty Act 1988 (Cth), s 4(3)(f)

Cases cited: China Pacific SA v Food Corporation of India [1982] AC 939

Division: General Division

Registry: New South Wales

National Practice Area: Admiralty and Maritime

Number of paragraphs: 31

Dates of hearing: 25 and 28 October 2024

Counsel for the Applicant: C L W Street

Solicitor for the Applicant: TLB Law & Co

Counsel for the Respondents: J Emmett SC and A Khadra

Solicitor for the Respondents: K2 Law

ORDERS NSD 1495 of 2024

BETWEEN: NICK SCALI LTD Applicant

AND: LION GLOBAL FORWARDING PTY LTD First Respondent

THEO KARABETSOS Second Respondent

order made by: STEWART J DATE OF ORDER: 28 OCTOBER 2024

THE COURT ORDERS THAT:

1. The applicant's interlocutory application accepted for filing on 24 October 2024 be dismissed. 2. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore)

STEWART J: 1 The applicant, Nick Scali Ltd, is an ASX listed company conducting a retail furniture business. 2 The first respondent, Lion Global Forwarding Pty Ltd, is a freight forwarder which has purported to exercise a contractual possessory lien over about 240 shipping containers of furniture imported by Nick Scali from China and Vietnam to Australia. Nick Scali says there are 243 containers whereas Lion says there are 232, but the difference does not matter for present purposes. The contents of the containers are worth about $18.6m. Most of it is pre-ordered household furniture for customers who are getting increasingly agitated by the delay in the delivery of their orders. 3 By interlocutory application, Nick Scali urgently seeks orders that it pay what Lion claims from it into court against which Lion be compelled to release the containers to it. That relief was initially sought on the basis that the amounts claimed by Lion are in dispute, but in oral argument Mr Street, who appears for Nick Scali, seeks also to rely on Nick Scali having a claim for damages against Lion which, he submits, will or may exceed the amount claimed by Lion. The originating application seeks a declaration that Nick Scali is not liable to Lion, ie a negative declaration, and unspecified damages or compensation in the alternative.