Naruone Australia Pty Ltd v TNS Logis Pty Ltd & Anor [2012] NSWSC 791

Supreme Court New South Wales

Medium Neutral Citation: Naruone Australia Pty Ltd v TNS Logis Pty Ltd & Anor [2012] NSWSC 791 Hearing dates: 12.06.12, 19.06.12 Decision date: 16 July 2012 Before: Nicholas J Decision: Pars 42-46 Catchwords: EQUITY - lien - general possessory lien over plaintiff's goods - money paid into court for which the lien is claimed - whether defendant entitled to general lien under agreement with plaintiff - whether money in court should be paid out to plaintiff - turns on facts - no question of general principle Cases Cited: Naruone Australia Pty Ltd v TNS Logis Pty Ltd & Anor [2011] NSWSC 1490 Category: Principal judgment Parties: Naruone Australia Pty Ltd - plaintiff TNS Logis Pty Ltd - first defendant P & L (Aust) Pty Ltd t/as PNL Global Logistics Pty Ltd - second defendant P & L (Aust) Pty Ltd t/as PNL Global Logistics Pty Ltd - cross-claimant Naruone Pty Ltd - cross-defendant Representation: Counsel: M K Rollinson - plaintiff/cross-defendant D P O'Connor - defendant/cross-claimant Solicitors: John Doolan - plaintiff/cross-defendant Youn HIS Lawyers - defendant/cross-claimant File Number(s): 11/359074 Publication restriction:

Judgment 1On 22 November 2011 the defendant (PNL) was ordered to deliver to the plaintiff's carrier the goods described in par 1 of the further amended summons (the goods) upon the plaintiff giving the usual undertaking as to damages, and paying the amount of $22,274 into court (Naruone Australia Pty Ltd v TNS Logis Pty Ltd & Anor [2011] NSWSC 1490). The order was made following the hearing of an interlocutory application in which the principal issue was PNL's entitlement to retain the plaintiff's goods under a general lien against non-payment of a debt claimed to be owing by the plaintiff. On 22 November 2011 it was also ordered that the claims for relief in the amended summons against the first defendant be dismissed with costs. 2In these proceedings the plaintiff seeks an order for payment to it of the funds paid into court, with interest. It also seeks declarations that the goods were unlawfully detained by PNL, and were at no time subject to a lien or other security in favour of PNL. The plaintiff also claims damages. By its cross-claim cross-summons filed 1 June 2012, PNL seeks a declaration that it held a valid lien over the goods, judgment against the plaintiff for the amount owing, and an order that the judgment debt be paid to it out of the funds held in court. 3Mr Hyung Jae Park is the managing director of the plaintiff, which trades under the name "Samyoung". Since about 1997 the plaintiff has carried on business as an importer of foodstuffs and other goods from the Republic of Korea (South Korea). Mr Sae Jun Kim is a senior cargo manager employed by PNL which carries on business from premises at Botany as a registered customs agent and freight forwarding company. PNL provided customs brokage and delivery services to the plaintiff on a regular basis in respect of the importation of about 47 containers between August 2008 and October 2011. 4The following explanation as to the provision by PNL of services to the plaintiff was given by Mr Kim (aff 21.11.11, par 5): "(a) If the goods are ordered by the plaintiff from a seller in Korea, the seller makes a delivery order to a freight forwarder such as KR or BOB Co in Korea. (b) KR as freight forwarder appoints a shipping carrier such as Hyundai Merchant Marine Co Ltd which will deliver the goods to the consignee or to the notify party as the consignee's agent at a pre-determined location, in this case Sydney. (c) Once KR has shipped the goods, it receives a master bill of a master bill of lading from the carrier and sends a house bill of landing by fax or email to PNL as its agent. (d) Before the cargo arrives at Sydney, PNL as the consignee or notify party receive an arrival notice tax invoice and make payment to the carrier on behalf of the plaintiff. Once the carrier receives the payment, PNL receive the delivery order from the carrier. (e) If the plaintiff appoints PNL as its customs and delivery agents (either directly or through its freight forwarder KR), PNL effects customs clearance by paying the relevant costs and fees including customs clearance fees, quarantine entry and other related fees and duty including GST on import goods, etc, on behalf of the plaintiff. (f) Once the goods are cleared from AQIS and customs, PNL make arrangements to collect and deliver the goods to a pre-determined destination nominated by the plaintiff."