AUSTRALIAN TALLOW & AGRI-COMMODITIES PTY LTD v MALAYSIA INTERNATIONAL SHIPPING CORPORATION [NO 2] [2001] NSWCA 390

New South Wales Court of Appeal

CITATION : AUSTRALIAN TALLOW & AGRI-COMMODITIES PTY LTD v MALAYSIA INTERNATIONAL SHIPPING CORPORATION [NO 2] [2001] NSWCA 390 revised - 20/11/2001 FILE NUMBER(S) : CA 40705/00 HEARING DATE(S) : 13 December 2000 JUDGMENT DATE : 16 November 2001

PARTIES : Australian Tallow & Agri-Commodities Pty Ltd - Appellant Malaysia International Shipping Corporation - Respondent JUDGMENT OF : Meagher JA; Sheller JA; Powell JA

LOWER COURT JURISDICTION : Supreme Court Equity Division - Admiralty LOWER COURT 7/2000 FILE NUMBER(S) : LOWER COURT Brownie AJ JUDICIAL OFFICER :

COUNSEL : A S Bell - Appellant J E Sexton SC - Respondent SOLICITORS : James Neill - Appellant Middletons Moore & Bevins - Respondent CATCHWORDS : Costs LEGISLATION CITED : N/A CASES CITED: N/A DECISION : 1 Declare that the respondent is not entitled to assert a lien over bill of lading numbered MISC 45000090070 or the goods the subject of that bill of lading for freight owing pursuant to any bills of lading in which Concordia Agri-Trading Pte Ltd was the named shipper; 2 Appeal otherwise dismissed; 3 Appellant to pay the costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40705/00 SC 7/2000 (Admiralty) MEAGHER JA SHELLER JA POWELL JA

Friday, 16 November 2001 AUSTRALIAN TALLOW & AGRI-COMMODITIES PTY LTD v MALAYSIA INTERNATIONAL SHIPPING CORPORATION [NO 2]

JUDGMENT

1 THE COURT: On 2 March 2001 the Court gave judgment in this appeal brought by Australian Tallow & Agri-Commodities Pty Limited (ATAC) against Malaysia International Shipping Corporation (MISC). The appeal was against a decision of Brownie AJ given on 17 August 2000. The question in issue was whether MISC was entitled to assert any lien over goods the subject of four MISC bills of lading, in three of which Australian Tallow & Commodities Pty Limited (ATC) was named as the shipper (the ATC bills of lading) and in one of which ATAC was named as the shipper (the ATAC bill of lading). 2 The appeal was allowed in respect of the goods the subject of the ATAC bill of lading to the extent that those goods had been detained for payment of freight payable under six other bills of lading known as the Concordia bills of lading. Otherwise the appeal was dismissed. The parties were required to bring in short minutes of order to give effect to the reasons of the Court together with any submissions they wished to make about costs at first instance and on the appeal. 3 On 19 April 2001 MISC filed submissions on orders and costs. Having pointed out that ATAC's submissions had failed both at first instance and on appeal in respect of three of the bills of lading, MISC went on to point out as follows: 1. In respect of the ATAC bill of lading MISC after it became aware that ATC and ATAC were different entities and before the trial before Brownie AJ offered to release the bill of lading upon payment of freight of $1,493, ATAC being responsible for the associated charges for that shipment. ATAC did not tender payment of freight. The offer was confirmed at the hearing before Brownie AJ. 2. Following the commencement of this appeal MISC's solicitors wrote to ATAC's solicitors on 27 October 2000 asking whether ATAC intended to pay freight and associated charges in order to obtain delivery of the consignment under the ATAC bill of lading. Apparently there was no response . 3. At all times since July 2000 ATAC has apparently adopted the position that it would not pay freight nor any associated charges in order to obtain release of the ATAC bill unless it was entitled to the release of the ATC bills as well. 4. The point on which ATAC succeeded (ie the proper construction of the bill of lading) was not raised until the morning of the hearing of the appeal. Until then the basis of the appeal was the privity of contract issue in respect of ATC and the Concordia consignments on which ATAC was unsuccessful. 5. Accordingly the distinction between the ATAC and ATC bills of lading was not relevant and the importance of the correspondence just related to the ATAC bill of lading was not appreciated and made the subject of submissions at the hearing. 6. In these circumstances ATAC's continued claim for orders with respect to the ATAC bill of lading was unjustified and the position taken by MISC was entirely reasonable. Accordingly there was no necessity for declaratory relief or for any further hearing at first instance in respect of damages in respect to the ATAC bill. 7. On this basis MISC contended that the appropriate substantive order was that the appeal be dismissed with costs. 4 In the alternative, MISC submitted the orders should be: 1. Declare that the respondent is not entitled to assert a lien over bill of lading numbered MISC 45000090070 or the goods the subject of that bill of lading for freight owing pursuant to any bills of lading in which Concordia Agri-Trading Pte Ltd was the named shipper. 2. Appeal otherwise dismissed. 3. Appellant to pay the costs of the appeal. 5 As a final alternative in respect to costs, as the respondent succeeded in the appeal in respect of three of the four bills of lading, the appellant should pay three-quarters of the respondent's costs of the appeal. 6 No submissions have been received from ATAC. On 17 September 2001 the Registrar of the Court wrote to Mr James Neill, the solicitor for ATAC, as follows: "On 2 March 2001 the Court delivered judgment in this appeal. You were and are the solicitor on the record for the appellant. In the reasons for judgment the parties were directed to bring in Short Minutes of Order to give effect to the reasons together with any submissions they wished to make about costs at first instance and on appeal. On 19 April 2001 the respondent filed submissions contending for orders that the appeal be dismissed with costs. No doubt you have received a copy of these submissions. Six months after the Court delivered judgment, no submissions have been received for your client. The Court has directed me to inform you that it requires that you file any submissions your client proposes to file in accordance with this direction on or before 8 October 2001. If the submissions are not filed within that time the Court proposes to make orders on the basis that your client does not wish to be heard further on the form of the orders." 7 No response has been received to that letter. Accordingly, it is appropriate that the Court deal with the matter on the basis that ATAC does not wish to be heard further on the form of the orders. 8 In our opinion, for the reasons set out in MISC's submissions which we have quoted the orders of the Court should be: 1. Declare that the respondent is not entitled to assert a lien over bill of lading numbered MISC 45000090070 or the goods the subject of that bill of lading for freight owing pursuant to any bills of lading in which Concordia Agri-Trading Pte Ltd was the named shipper. 2. Appeal otherwise dismissed. 3. Appellant to pay the costs of the appeal. *******