Central North Plumbing Services Pty Ltd v Ship 'Clarence Beach', The [1992] QSC 142

TRAl~SCRIPT OF PROCEEDINGS r-' 1 SUPREME COURT OF QUEENSLAND \, \ / \ \ ( CIVIL JURISDICTION THOMAS J No 1530 of 1991 CENTRAL NORTH PLUMBING SERVICES PTY LTD. and THE SHIP "CLARENCE BEACH" BRISBANE .. DATE 1/4/92 JUDGMENT 1 State Reporting Bureau, 4th Floor, The Law CourtsQ George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 Plaintiff Defendant -- 1 of 5 -- 010492 JUDGMENT· HIS HONOUR: This matter has occupied one and a quarter hours. It isa motion for judgment by a plaintiff in respect of a claim for work done. on the ship "Clarence Beach". The claim is a small one ($2,527.44) pursuant to a writ issued on 5 September 1991. The claim in the writ was 10 for that sum "together with interest and costs". There were no particulars of interest or of costs given in the writ. Pursuant to the plaintiff's request the vessel was immediately arrested by the proper officer of the Court. 20 (\ The defendant appeared in the action by solicitors. On 13 September 1991 the defendant wrote to the plaintiff's c=) solicitors offering to pay $2,949.39 and actually paid that sum in Court as deposed to. in the affidavit of Mr Laing filed on the same day. Paragraph 4 of the affidavit referred to that sum as being "in satisfaction of the cause of action referred_to in the writ of summons ... and pursuant to Rule 51 -of the Admiralty rules 1988". On the same day, rightly in my view, the Registrar ordered or declared that the vessel was released by reason of that payment. It is unnecessary for- me to state further events in relation , to the ship which have been asserted from the Bar table . and not supported by evidence. For the moment I confine myself to the further procedural steps which have been taken. I regard the .. further proceedings as something of_ a storm in a tea cup_,·h~"?ingregard to the payment into Court which was 2 30 40 50 60 -- 2 of 5 -- 010492 JUDGMENT more than sufficient to satisfy the claim. In the present matter I do not regard the defendant as having been obliged to include interest, because at that stage the only claim was in the writ and it gave no date from which or any other criteria upon which a proper calculation could be made. In the event a small sum was included for interest, and it seems that a bona fide. attempt was· made to cover what were thought to be reasonable costs at that stage. Undoubtedly, the solicitors for the plaintiff had other ideas about· the costs. That is really all that the dispute is about. Counsel for the plaintiff has submitted that the Registrar. wrongly released the ship from arrest in consequence of the payment in. This submission seems to be based on ·the footing that under Rule 51 of the Admiralty Rules "the amount claimed" must include whatever the costs might finally turn out to be, notwithstanding that no particular amount for costs is included in the claim. On such a view of Rule 51 valuable vessels might be tied up for very long periods while costs were worked out; and a ship owner might be held·very easily to ransom by reason of unliquidated claims for costs · and unreasonable insistence upon their payment. Rule 51, which is intended to work in a commercial context, would in my view· be unworkable if so construed. During the- argument ·I expressed doubt as to· whether it was appropriate that the plaintiff should now be moving for 3 10 20 30 40 50 60 -- 3 of 5 -- ------- 010492 JUDGMENT. judgment when, as it seems to me, the simplest and least expensive procedure would have been to apply to Court for payment out of the moneys in Court. In this context it seems to me that this could have been done on summons and that the·· fact that . the payment was expressly "in satisfaction of the cause of action referred to in the writ" a Court would readily make the necessary order without any necessity of proceeding to judgment. In the event, the plaintiff delivered a statement of claim. The defendant, who had other things on his mind, and who 10 20 c~ does not seem to have been in regular contact with his C'i solicitors, failed to deliver a defence. Having paid the claim he· might. be excused for thinking that further litigation was unnecessary. In this context, today the plaintiff moves before me under Order 31 Rule 11 judgment in default of pleading. for. With some hesitation, I am willing to grant judgment under that ·rul:e. · It .will form(!lise the plaintiff's rights, although in the circumstances my discretion as to costs, I think, is activated by the consideration that this procedure. may have . been unnecessary and a · less expensive one was available •. · Accordingly, I grant judgment for the plaintiff for $2,527.44. With the acquiescence of the plaintiff's representatives, I calculate interest thereon at 12 per cent from 2 December 1991 to 1 April 1992 at $176 and award that 4 30 c~ 40 c 50 60 -- 4 of 5 -- 010492 JUDGMENT. sum to the plaintiff by way of interest. I further am prepared to grant the plaintiff an order for costs of the action up to and including 13 September 1991 and will further grant the plaintiff the costs of the present motion for judgment, but no other costs of the action. I direct that the amount paid into Court be paid out to the solicitors for the plaintiff in pro tanto satisfaction of the judgment, including the sum for interest and such sum as ( may be taxed by way of costs. I \. I refuse the application made on behalf of the plaintiff that the vessel be rearrested presumably as security for the untaxed surplus of these costs. Application was made for leave to appeal against my judgment in respect of costs. It will preserve such rights of appeal as the plaintiff may wish to exercise when I refuse that application, as I now do. I must say, I am not impressed by the prospect of extra costs being manufactured by further legal proceedings having regard to the rather trivial amount involved in the present exercise. I accordingly refuse leave to appeal against the order for costs. I refuse to set aside the Deputy Registrar's order of 13 September 1991. 5 10 20 30 40 50 60 -- 5 of 5 --