The Elusive [2010] NSWSC 525

New South Wales Supreme Court

CITATION : The Elusive [2010] NSWSC 525

HEARING DATE(S) : 17 May 2010

JUDGMENT DATE : 20 May 2010

JURISDICTION : Equity Division, Admiralty List

JUDGMENT OF : Rein J

In proceedings 2010/86344, the Court orders: 1. that the Plaintiff have possession of the ship "Elusive" (marine registration AFJ852N) ("the Ship"); 2. that upon either payment to the Admiralty Marshal of the Marshal's costs and expenses in relation to the arrest (including costs and expenses in connection with the custody of the ship "Elusive" whilst under arrest and any costs associated with the release of the ship from arrest)("the costs and expenses of arrest") or the Plaintiff's solicitors making arrangements satisfactory to the Marshal for payment of the costs and expenses of arrest: (a) the Ship be released from arrest; (b) upon the release of the Ship from arrest, the Marshal deliver the Ship into the possession and custody of the Plaintiff or its nominated representative; 3. that the Defendants pay the Plaintiff's costs of the proceedings (including the costs and expenses of arrest); 4. that the Plaintiff advise in writing the liquidator of Trelat Pty Limited (in liquidation) and Monte Fino Australia Pty Limited of: (a) the completion of the sale of the Ship; DECISION : (b) the amount of the proceeds of sale; (c) the amount of the proceeds applied by the Plaintiff in discharge of the monies owing to it under the chattel mortgage from Trelat Pty Limited (in liquidation) to the Plaintiff dated 30 April 2009; and (d) the balance of the proceeds of sale of the Ship, if any, held by the Plaintiff following the discharge of the monies owing to it in accordance with (c) within 7 days of the discharge of the Plaintiff's debt (in accordance with (c) above). In proceedings 2010/90391, the Court declares that: 1. the Plaintiff is the legal and beneficial owner of the ship "Elusive" (marine registration AFJ852N)("the Ship") pursuant to the Security Interest-Chattel Mortgage between the Plaintiff and Trelat Pty Limited (in liquidation) dated 30 April 2009 subject to an equity of redemption exercisable by Trelat Pty Limited (in liquidation); 2. the Plaintiff is forthwith entitled to vacant possession of the Ship; The Court orders that: 3. the Defendants continue to be restrained in accordance with order 4 of the orders made in these proceedings on 13 April 2010 (as extended by order 11 of the orders made on 14 April 2010) until the Ship has been sold by the Plaintiff as mortgagee in possession; 4. the Defendants to pay the Plaintiff's costs of and incidental to these proceedings.