File number:NSD 597 of 2024
Judgment of:STEWART J
Date of judgment:7 June 2024
Catchwords:ARBITRATION – application for enforcement of foreign arbitral award under s 8(3) of the International Arbitration Act 1974 (Cth) – one-stage process – award debtor served abroad – whether notice period adequate – award enforced and judgment entered, but judgment stayed for period of time to allow a challenge, if any  
ADMIRALTY – Fund constituted by the proceeds of judicial sale cited as defendant – whether award should be enforced and judgment entered against the Fund or against the award debtor
Legislation:Admiralty Act 1988 (Cth) ss 18, 29(1) International Arbitration Act 1974 (Cth) s 7(2) Admiralty Rules 1988 (Cth) r 19 Federal Court Rules 2011 (Cth) rr 28.44(1), 28.44(2)(a), 28.44(2)(b), 10.43C, 39.32(3), 39.04, 39.05(h)
Cases cited:Dan-Bunkering (Singapore) Pte Ltd v The Ship Yangtze Fortune [2022] FCA 1556 Dan-Bunkering (Singapore) Pte Ltd v The Ship Yangtze Fortune (No 3) [2024] FCA 219
Division:General Division
Registry:New South Wales
National Practice Area:Commercial and Corporations
Sub-area:Commercial Arbitration
Number of paragraphs:26
Date of hearing:7, 11 June 2024
Solicitor for the Applicant:W Naseem of Cocks Macnish

ORDERS

 NSD 597 of 2024
BETWEEN:AUSTRALASIAN GLOBAL EXPORTS PTY LTD
Plaintiff  
AND:THE SHIP “M/V YANGTZE FORTUNE”, THE PROCEEDS OF SALE
First Defendant  
YANGTZE FORTUNE CO LTD
Second Defendant  
order made by:STEWART J
DATE OF ORDER:7 June 2024

THE COURT ORDERS THAT:

  1.        Pursuant to s 8(3) of the International Arbitration Act 1974 (Cth), it is declared that the applicant is entitled to enforce the Final Arbitration Award between Australasian Global Exports Pty Ltd and Yangtze Fortune Co Ltd dated 6 February 2024 as if it were a judgment of the Court.
  2.        Judgment be entered in favour of the plaintiff against the defendant in the terms of the award, namely in the following amounts:
    (a)        A$1,262,918.88
    (b)        US$1,747,500.00
    (c)        Legal fees & disbursements: £33,494.96
    (d)       Costs of the Award: £10,700.00
    (e)        Pre-judgment interest on items (a)-(d) above (as per Annexure “A” calculated to 7 June 2024):

    (i)         A$111,470.49
    (ii)        US$233,124.23
    (iii)       £895.19
    (Judgment Sum)
  3. The AUD Judgment Sum be converted to USD at the latest available exchange rates published by the Reserve Bank of Australia as at the date of judgment in the amount of US$915,343.32.
  4. The GBP Judgment Sum be converted to USD at the latest available exchange rates published by the Bank of England in the amount of US$57,535.03.
  5. Interest be payable on the converted total USD Judgment Sum the sum of the amount under order 2, 3 and 4 above at the interest rate prescribed under r 39.06 of the Federal Court Rules 2011 from the date of judgment.
  6. Yangtze Fortune Co Ltd pay the plaintiff’s costs of the proceeding.
  7. The assessment of costs of the proceeding be referred to a Registrar for determination on a lump sum basis on the papers.
  8. The costs at order 7 be converted to USD at the prevailing exchange rates published by the Reserve Bank of Australia as at the date of the court’s assessment of such costs.
  9. Yangtze Fortune Co Ltd have liberty to apply on or before the 43rd day following service on it on 20 May 2024, ie on or before 2 July 2024, to apply to set aside the orders.
  10. Orders 1-5 be stayed until 3 July 2024.
  11. The applicant serve today’s orders and the affidavit of Michael Cooper 28 May 2024 on Yangtze Fortune Co Ltd by:
    (a)        Email to ‘livestock@cmhk.com’ by close of business today;
    (b)        Registered post to Room 2103, Futura Plaza, 111 How Ming Street, Kwun Tong, Hong Kong, as soon as practical; and
    (c)        Registered post to RM 1005, Changhang Mansion, 800 ZhangYang Road, Pudong, Shanghai, as soon as practical.
  12. Liberty to apply.
  13. Yangtze Fortune Co Ltd be joined as the second defendant.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

 NSD 597 of 2024
BETWEEN:AUSTRALASIAN GLOBAL EXPORTS PTY LTD
Plaintiff  
AND:THE SHIP “M/V YANGTZE FORTUNE”, THE PROCEEDS OF SALE
First Defendant  
YANGTZE FORTUNE CO LTD
Second Defendant  
order made by:STEWART J
DATE OF ORDER:11 June 2024

THE COURT ORDERS THAT:

  1. Order 2 of the orders made on 7 June 2024 be varied by inserting “second” before “defendant” with the effect that judgment as set out in that Order 2 be entered against the second defendant.
  2. The plaintiff, forthwith, serve these orders and the reasons for judgment on the second defendant, Yangtze Fortune Co Ltd, by email to the email address in Order 11(a) of the orders made on 11 June 2024.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

  1. These are my reasons for making orders on 7 June 2024 enforcing an arbitral award although staying that enforcement for a period to enable the award debtor to challenge the enforcement if it should wish to do so. I also explain below why I am making an order correcting those orders.
  2. The applicant, Australasian Global Exports Pty Ltd (AGE), as charterer and Yangtze Fortune Co Ltd as disponent owner concluded a booking note dated 13 September 2022 for the voyage charter of the livestock carrier Yangtze Fortune. It was for the carriage from Australia or New Zealand of full and complete cargoes of livestock and foodstuff to discharge ports in the People’s Republic of China to be nominated by AGE. The charterparty provided that any dispute arising under it be referred to arbitration in England.
  3. Because of events canvassed in Dan-Bunkering (Singapore) Pte Ltd v The Ship Yangtze Fortune [2022] FCA 1556, the vessel never presented for loading at the first load port, in consequence of which AGE asserted claims for breach of contract against Yangtze. AGE commenced a proceeding in rem against the vessel in this Court on 9 November 2022 in proceeding WAD238/2022. That was in reliance on s 18 of the Admiralty Act 1988 (Cth) on the basis that Yangtze was the demise charterer of the vessel. AGE did not cause the vessel to be arrested in that proceeding, but rather filed a caveat against the release of the vessel from its arrest in a proceeding by another creditor, Dan-Bunkering (Singapore) Pte Ltd (proceeding NSD958/2022). Yangtze, as the “relevant person”, entered an appearance to defend AGE’s proceeding.
  4. On 17 February 2023, I made orders staying proceeding WAD238/2022 under s 7(2) of the International Arbitration Act 1974 (Cth) (IAA) in favour of arbitration in England. I had in the meanwhile ordered the judicial sale of the vessel in Dan-Bunkering’s proceeding, so I ordered that subject to any further order with regard to priorities and payments from the fund established from the proceeds of the judicial sale, pursuant to s 29(1) of the Admiralty Act, the proceeds of the sale be retained by the Court as security for the satisfaction of any award that may be made in the arbitration.
  5. AGE then commenced an arbitration proceeding against Yangtze pursuant to the arbitration clause in the charterparty. The parties nominated a sole arbitrator, David Martin-Clark, who accepted the nomination on 14 March 2023. The parties agreed that the arbitration be conducted subject to the current terms of the London Maritime Arbitrators Association (LMAA).
  6. The arbitration was stalled for some time because of ongoing proceedings in this Court concerning the sale of the vessel and the establishment of a fund (described in Dan-Bunkering (Singapore) Pte Ltd v The Ship Yangtze Fortune (No 3) [2024] FCA 219 at [7]-[29]). On 16 March 2023, I ordered the publication of a notice of application to determine priorities. That notice, which was published widely, stipulated that anyone who had a claim against the proceeds of sale of the vessel was required, by 13 April 2023, to file and serve a statement of claim in that proceeding to enforce the claim. AGE filed such a statement of claim on 13 April 2023 in which it asserted the same claim as that asserted by it in its stayed in rem proceeding against the vessel and in the arbitration.
  7. Ultimately, Yangtze did not present a defence or counterclaim in the arbitration. On 6 February 2024, Mr Martin-Clark made an award in AGE’s favour.
  8. The arbitral award provides for the payment by Yangtze to AGE of the sums of A$1,262,918.88 and US$1,747,500.00 plus interest on those amounts from various dates identified in the award at the rates of 8% and 6% per annum, respectively. AGE was also awarded its costs of the reference in the sum of £33,494.96 and the costs of the award in the sum of £10,700.00 plus interest on those amounts at 6% per annum.
  9. On 10 May 2024, AGE lodged the originating application in the current proceeding for filing. The application is expressly made under r 28.44(1) of the Federal Court Rules 2011 (Cth) (FCR), ie a person who wants to enforce a foreign award under s 8(3) of the IAA must file an originating application in accordance with Form 52. The application is on Form 52 and cites “THE SHIP ‘M/V YANGTZE FORTUNE’, the proceeds of sale” as the defendant. In that sense it could on one reading be thought to have been intended be a process in rem, however r 19 of the Admiralty Rules 1988 (Cth) requires that a proceeding commenced as a proceeding in rem be commenced by writ in accordance with Form 6.
  10. Also, AGE has its extant, albeit stayed, in rem proceeding against the ship so it is not clear on what basis it could bring another such proceeding on, in effect, the same claim, in particular when it may not be able to satisfy the requirement that at the time of the commencement of the proceeding Yangtze was the demise charterer of the vessel (as required by s 18 of the Admiralty Act). That may depend on the proper construction of s 24 of the Admiralty Act, as to which see Yangtze Fortune (No 3) at [52]-[54].
  11. The originating application has prayers for the following forms of relief:
    (a) A declaration pursuant to s 8(3) of the IAA that AGE is entitled to enforce the award against “the Defendant and the proceeds of sale of the ship ‘Yangtze Fortune’ (Fund) in Federal Court proceedings NSD958/2022, as if it were a judgment of this Court” (which wording might suggest that the defendant and the fund are not the same).
    (b) Judgment in favour of AGE against “the Defendant” (without further identification) in the various sums awarded in the award, plus interest and costs.
  12. The originating application also states that it was intended to serve the application on “the following Defendant: Yangtze Fortune Co. Limited”, suggesting that it was thought or intended that Yangtze was a defendant. There was no provision for service on the parties interested in the fund.
  13. Prior to the first return date, AGE furnished draft orders that it would seek on that occasion.  Those orders sought the following forms of relief:
    (a) The provision of notice to Yangtze in specified ways that unless “the defendant” file an application to oppose the making of orders to enforce the award with 28 days, the Court would make such orders.
    (b) Various orders for the conversion of AUD and GBP amounts to USD because the fund is held in USD.
    (c) Costs orders.
  14. In the meanwhile, AGE had served the originating application and supporting affidavit and exhibit and notice of the details of the first return hearing on Yangtze. That was done on 20 May 2024 to an email address that Yangtze had notified for use for communications in relation to the arbitration and on 24 and 26 May 2024 by registered post at Yangtze’s registered office in Hong Kong and its business address in Shanghai, respectively. There was no appearance by Yangtze when the matter was called.
  15. At the hearing, I was satisfied of the following matters.
  16. First, the award, having been made in England, is a “foreign award” as defined in s 3(1) of the IAA, and is therefore an award that may be enforced under s 8(3).
  17. Secondly, the award has not been set aside or suspended (s 8(5)(f)).
  18. Thirdly, with reference to FCR r 28.44(2)(a), duly certified copies of the arbitral award and the arbitration agreement under which the award was purportedly made were tendered satisfying the requirements of s 9(1) and (2) of the IAA. The award is between the same parties who are parties to the arbitration agreement.
  19. Fourthly, with reference to FCR r 28.44(2)(b), there is affidavit evidence to the effect that the award has not been complied with and giving Yangtze’s last known place of business and registered address.
  20. I was also satisfied that the relief sought is in accordance with the award.
  21. For those reasons, I was satisfied that the award can be enforced against Yangtze. However, since Yangtze had not been expressly or properly cited as a defendant to the proceeding, and it has an obvious interest in the relief, I ordered that it be joined as the second defendant.
  22. Because Yangtze had been served with the originating application and the supporting affidavit, it had been given notice of the hearing and I was satisfied as to the various matters identified at [16]-[20] above, but for one matter I would, without more, have been prepared to grant final relief against Yangtze. That matter is that FCR r 10.43C gives a person who has been served outside Australia at least 43 days in which to file a notice of address for service and Yangtze had been given only 13 days’ notice – no doubt because the plaintiff had intended a two-stage process as explained at [13] above.
  23. Given that Yangtze had not defended the arbitration and did not appear at the hearing on the return date, and also that it likely takes the view that the award will be satisfied, at least in part, from the fund, it seems unlikely that Yangtze will appear to oppose final enforcement of the award. Nevertheless, it may wish to do so and allowance must be made for that. I was satisfied that adequate allowance is made by making final orders but staying them until after the 43rd day from the date of service of the originating application and supporting affidavit on it, and granting Yangtze leave to apply to set aside the orders.
  24. For those reasons, I made orders enforcing the award.
  25. However, as an oversight on my part, in order 2 judgment was made against “the defendant” whereas it should have been made against the second defendant, Yangtze. That is an error that clearly qualifies for correction under the “slip rule”, FCR r 39.05(h), ie if “there is an error arising in a judgment or order from an accidental slip or omission”. In any event, since the judgment has not yet been entered as 14 days have not yet passed since it was authenticated in accordance with r 39.35(1) (see r 39.32(3)), it can be varied under FCR r 39.04.
  26. I will therefore vary Order 2 that I made last week by inserting “second” before “defendant” and I will provide for that order and these reasons to be served on Yangtze.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.

Associate:

Dated:        11 June 2024

End