case_title: Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 62 ALD 73

case_text: as to that first ground for review, the applicant referred to Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73 at [42]-[50], where a Full Federal Court was said by the applicant to have recognised that extortion may have dual motivations, one of which may be Convention based and the other not so. The applicant asserted that there was evidence that people such as the applicant may be targeted in the manner complained of, both because they have money and because they belong to a minority religion. By way of asserted illustration, the applicant pointed to the testimony of a witness that the applicant was '... at risk of being kidnapped and possibly killed if he returned to Bangladesh', and all that at the hands of 'people wanting money' because he 'belongs to a minority religion'. However the applicant acknowledged that he had testified by his statement to the Tribunal to the effect that he did not think he would have been kidnapped if he was not perceived as having money, but that so much did not derogate from the circumstance that people in his position were targeted in Bangladesh because they are 'perceived as having money', and also because they 'belong to minority religions'. It was contended by the applicant that the failure of the Tribunal to recognise that dual motivation gave rise to jurisdictional error on the Tribunal's part.


case_outcome: cited

case_text: agreement to purchase a ship, especially of the size and characteristics of the " Gem of Safaga ", is within the class of contracts for which equity would order specific performance: see Meagher, Gummow & Lehane's, Equity: Doctrines & Remedies (4 th ed 2002) at 659 [20-040]; Eximenco Handels AG v Partredereit Oro Chief and Levantes Maritime Corporation (The "Oro Chief") [1983] 2 Lloyd's Rep 509 at 520-521 per Staughton J; Allseas International Management v Panroy Bulk Transport SA (The "Star Gazer" and the "Star Delta") [1985] 1 Lloyd's Rep 370 at 378 per Neill J, and ss 30 , 56 of the Sale of Goods Act 1923 (NSW).


case_outcome: followed

case_text: carries the ultimate burden of proof that the jurisdictional facts exist on which the arrest can be justified. It must establish those facts on the balance of probabilities taking into account all relevant matters: s 140 of the Evidence Act 1995 (Cth); see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 479-482 [29] - [38] , 488-489 [70]-[73] per Weinberg, Bennett JJ and myself. And, as Lord Mansfield CJ said long ago in Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 65: "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted." See too: Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ; at 233 per Brennan and Toohey JJ.


case_text: when a person purchases and pays for real or personal property and directs that the legal title be transferred into the name of a stranger, the law presumes, in the absence of evidence to the contrary, that the property is held on a resulting trust for the purchaser: Charles Marshall Pty Ltd v Grimsley [1956] HCA 28 ; (1956) 95 CLR 353 at 363-364 per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ. Here, as West Asia argued, the co-ownership agreement, the mortgage given by Four M and West Asia's accounting entries are evidence to the contrary. Evidence of the intention of the purchaser at the time of the transaction or so immediately after it that it constitutes a part of it and admissions against interest, will be relevant to rebut the presumption. So will evidence of subsequent dealings: Trustees of the Property of Cummins (a Bankrupt) v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 at 300-301 [65] - [67] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. If the stranger assumes liability under a mortgage given to obtain finance for the purchase, this conduct can be evidence rebutting the presumption: Calverley v Green [1984] HCA 81 ; (1984) 155 CLR 242 at 252 per Gibbs CJ, 257-258 per Mason and Brennan JJ, at 268 per Deane J.


case_outcome: applied

case_text: s 19 confers jurisdiction on a court, it should not be construed or hedged about by making implications or imposing limitations that do not appear in its express terms: Shin Kobe Maru 181 CLR at 421; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at 361 [178] per Gummow, Hayne, Heydon and Kiefel JJ. Additionally, s 15AB of the Acts Interpretation Act 1901 (Cth) permits the meaning of an expression in an Act to be confirmed by reference to a report such as ALRC 33 (see s 15AB(1)(a) and (2)(b)): Laemthong International Lines Co Ltd v BPS Shipping Ltd [1997] HCA 55 ; (1997) 190 CLR 181 at 189 per Brennan CJ, 190 per Toohey J, 204 per Gaudron, Gummow and Kirby JJ.


case_title: Charles Marshall Pty Ltd v Grimsley [1956] HCA 28 ; (1956) 95 CLR 353


case_text: course, there is an incongruity in this approach because it ignores the rights of a secured creditor (other than a holder of a maritime lien recognised in s 15) such as a mortgagee and instead prefers those of a co-owner. Thus, if a vessel is co-owned it would not be able to be arrested under s 19 if one co-owner were not a relevant person under s 19(a), but a mortgagee cannot escape the amenability of the vessel to arrest. But this is the consequence of the legislative choice of selecting, as the criterion for actuating the right defined in s 19(b), the "owner", and not extending this to secured creditors or demise charterers: cf Comandate Marine Corporation v The Ship "Boomerang I" [2006] FCAFC 106 ; (2006) 151 FCR 403. As Allsop J observed, the wide group of categories identified in s 19(a) is then "limited to the more narrow funnel in para (b) ...": " Boomerang I " 151 FCR at 411 [35]. Notions of ownership "are not amenable to crisp, comprehensive definition in the abstract": Tisand Pty Ltd v The Owners of the Ship MV Cape Moreton (Ex Freya) [2005] FCAFC 68 ; (2005) 143 FCR 43 at 73 [119] per Ryan and Allsop JJ; see too " Boomerang I " 151 FCR at 411 [33] per Allsop J. Ryan and Allsop JJ said that in the context of ss 17, 18 and 19 of the Act the words "ownership" or "owner" connote the right to have and dispose of dominion, possession and enjoyment of the ship, subject to intervening interests. The word "owner" is used in those sections in a proprietary sense. This reflects the purpose of the Act to require any property arrested to belong to the relevant person.


case_title: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466


case_title: Eximenco Handels AG v Partredereit Oro Chief and Levantes Maritime Corporation (The "Oro Chief") [1983] 2 Lloyd's Rep 509


case_outcome: discussed

case_text: hazards of a managing director engaging in a transaction involving the property of the company, even when told by the board of directors to do the best he or she can for himself or herself in dealings with a third party, were exposed in Furs Ltd v Tomkies [1936] HCA 3 ; (1936) 54 CLR 583 at 592-594 per Rich, Dixon and Evatt JJ. Ordinarily, before a director can obtain a profit or benefit for himself or herself from a transaction in which he or she is concerned on behalf of the company, he or she must fully disclose all the material facts to the shareholders and receive approval by a resolution of a general meeting or all of the shareholders acquiesce: Furs 54 CLR at 592; see too Ch 2 D of the Corporations Act 2001 . There is no evidence of Indian law on these matters. Four M was described in the term sheets as a family or holding company of Mr Qadir and an associate of West Asia. In contrast, West Asia's board minutes state that Mr Qadir only disclosed an interest as director of Four M in its participation in the acquisition of the " Gem of Safaga ". The same board minutes authorised the completion of the purchase for USD13.6 million, entry into the co-ownership agreement and the acceptance by West Asia of the USD14 million facility offered by ICICI bank jointly and severally to it and Four M. The evidence of Four M's role is thus sparse and mysterious. West Asia could have explained that role and the reason why Four M was nominated to become a purchaser as part of its evidence. Its board minutes do not reveal any commercial or financial consideration given or paid by Four M to become a purchaser. Mr Joshi said that he was orally instructed by the executive director to whom he reported that he sign addendum No 1 on behalf of West Asia to add Four M as a purchaser. But, he did so on the terms stated, namely that West Asia would remain fully responsible. Mr Joshi said that at the time he was given the instructions to sign addendum No 1, the executive director told him "10 per cent of the share will be given to Four M". The executive director did not explain why Four M was being given that interest.


case_title: I Congreso del Partido [1978] QB 500

case_text: it is not necessary or conclusive that a person be registered as owner or hold the legal title to a ship for him or her to be found to be "the owner" within the meaning of ss 17, 18 or 19 of the Act: Cape Moreton 143 FCR at 65 [92], 73 [118], 84 [161]-[162]. And, a person who is the beneficial owner of the arrested res , ordinarily, will have the immediate right to exercise dominion over and to enjoy or control that res : Cape Moreton 143 FCR at 85 [168]; Kent v SS "Maria Luisa" (No 2) [2003] FCAFC 93 ; (2003) 130 FCR 12 at 33-34 [61] - [66] per Tamberlin and Hely JJ; Malaysia Shipyard and Engineering Sdn Bhd v "Iron Shortland" as the Surrogate for the Ship "Newcastle Pride" (1995) 59 FCR 535 at 547D-F per Sheppard J; see too at 547F-548A. Neither party disputed the correctness of the principles relating to the meaning of "the owner" in ss 17, 18 and 19 stated in Iron Shortland 57 FCR 535 ; Cape Moreton [2005] FCAFC 68 ; 143 FCR 43 and Maria Luisa [2003] FCAFC 93 ; 130 FCR 12. The purpose of the Parliament conferring rights to proceed in rem against a ship or other property was to make that res , first, available as property of a wrongdoer or debtor to satisfy a maritime claim and, secondly, because it had been arrested, to cause its owner to appear and subject himself to in personam liability. Therefore, it is critical to construe the expression "the owner" in s 19(b) so as to ensure the effective exercise of the jurisdiction that the section confers. Because "the owner" is not defined for the purpose of s 19(b), the expression identifies someone who holds a sufficient proprietary interest in the res itself, directly or indirectly, that he could sell or dispose of the res or, cause such a sale or disposition, so as to convey a good title to the purchaser. The common law and equity have developed differing indicia and categories of ownership of which legal title and beneficial interest are notable examples. But, in the world of maritime adventures, ownership of a ship is not always easy to ascertain and often will be deliberately obscured. That is why the expression "the owner" in s 19(b) should be given a broad interpretation so as to enable achievement of its purpose of connecting the person who is liable for a maritime claim to a ship or other property that he owns. And he will own the res , if he can sell or cause its sale because of his title to that property. In a valuable discussion, Reyes J (with whom Ma CJHC and Stone J agreed in separate judgments) considered the, perhaps narrower, expression "beneficial owner" as used in s 12B(4) of the Hong Kong High Court Ordinance (Cap 4) in The "Convenience Container" [2007] 3 HKLRD 575. Reyes J concluded that the expression focussed "... simply on matters of title, namely, the right to sell or dispose of a ship": " Convenience Container " [2007] 3 HKLRD at 584 [43]. Reyes J also observed that beneficial ownership was not merely concerned with control or administration of a vessel or even the enjoyment of the proceeds of its sale. He recognised that these may or may not be useful as evidence from which a finding of ownership can be made. But he held that the key question was whether the relevant person in s 19 had title, as "the owner" of the res in order to support its arrest: cp "Convenience Container " [2007] 3 HKLRD at 583-584 [35]-[42]; see too per Ma CJHC at 606-607 [165]-[167] and Stone J at 595-597 [108]-[115]; I Congreso del Partido [1978] QB 500 at 538E-F, 541B per Robert Goff J; The Permina 3001 [1979] 1 Lloyd's Rep 327 at 329 per Wee CJ in the Singapore Court of Appeal; and The "Tychy" [1999] 2 Lloyd's Rep 11 at 20 per Clarke LJ, Otton and Waller LJJ agreeing. In MV "Sea Success I " (AIR 2002 Bombay) at 184 [56] the Court held that it would follow the broad international legal consensus that the test for beneficial ownership of the shares in a ship was whether the person had a right "... to sell, dispose of or alienate the shares in the ship". The Court also refused to lift the corporate veil between parent and subsidiary companies: MV "Sea Success I" (AIR 2002 Bombay) at 181-182 [54]. Earlier, the Court quoted a passage from the reasons of the Supreme Court of India in MV "Elisabeth" (AIR 1993 SC 1014) at [64]-[65] that recognised the procedural theory of Admiralty jurisdiction in India: i.e. the action in rem overcame the difficulty of personal service on a relevant person and either compelled him to appear to furnish security for release of the res or, in default of appearance, to proceed directly against the res .


case_text: the present circumstances, I am satisfied that it is proper to draw any inference favourable to Euroceania for which there is ground in relation to Four M's role. West Asia was able to put a fuller and truer complexion on the facts, but only tendered some documents and led evidence from Mr Joshi. He said that he was not aware of what had occurred in relation to Four M beyond what he had been instructed. West Asia contended that the one share in the ship held in the name of Four M showed that it was not "the owner" of the " Gem of Safaga " for the purposes of challenging jurisdiction under s 19(b) of the Act. Although Euroceania had the onus of proof on this issue, the unexplained failures of West Asia to call evidence on the matters to which I have referred has enabled me to infer that such evidence would not help its case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 ; CEPU 162 FCR at 489 [72]. West Asia contended that the consequence of Euroceania's argument was that the co-ownership agreement, accounting entries reflecting it and registration of Four M's one share in the ship amounted to a sham. I reject that contention. There is a real difference between creating documents to cloak the reality of a different relationship and a failure to perfect or create the relationship which those documents were capable of representing. Here, I am not satisfied that on all the evidence, West Asia effectively assigned or disposed of any part of its beneficial interest in the ship that it had acquired on entry into the 2 February 2007 memorandum of agreement. Hence, Four M holds its' share in the vessel on a resulting trust.


case_text: it is not necessary or conclusive that a person be registered as owner or hold the legal title to a ship for him or her to be found to be "the owner" within the meaning of ss 17, 18 or 19 of the Act: Cape Moreton 143 FCR at 65 [92], 73 [118], 84 [161]-[162]. And, a person who is the beneficial owner of the arrested res , ordinarily, will have the immediate right to exercise dominion over and to enjoy or control that res : Cape Moreton 143 FCR at 85 [168]; Kent v SS "Maria Luisa" (No 2) [2003] FCAFC 93 ; (2003) 130 FCR 12 at 33-34 [61] - [66] per Tamberlin and Hely JJ; Malaysia Shipyard and Engineering Sdn Bhd v "Iron Shortland" as the Surrogate for the Ship "Newcastle Pride" (1995) 59 FCR 535 at 547D-F per Sheppard J; see too at 547F-548A. Neither party disputed the correctness of the principles relating to the meaning of "the owner" in ss 17, 18 and 19 stated in Iron Shortland 57 FCR 535 ; Cape Moreton [2005] FCAFC 68 ; 143 FCR 43 and Maria Luisa [2003] FCAFC 93 ; 130 FCR 12.


case_text: s 19 confers jurisdiction on a court, it should not be construed or hedged about by making implications or imposing limitations that do not appear in its express terms: Shin Kobe Maru 181 CLR at 421; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at 361 [178] per Gummow, Hayne, Heydon and Kiefel JJ. Additionally, s 15AB of the Acts Interpretation Act 1901 (Cth) permits the meaning of an expression in an Act to be confirmed by reference to a report such as ALRC 33 (see s 15AB(1)(a) and (2)(b)): Laemthong International Lines Co Ltd v BPS Shipping Ltd [1997] HCA 55 ; (1997) 190 CLR 181 at 189 per Brennan CJ, 190 per Toohey J, 204 per Gaudron, Gummow and Kirby JJ. However, West Asia must still be a relevant person within the meaning of s 19(a) in one of the two ways on which Euroceania relies. Each of the connecting factors referred to in s 19(a) (the owner, charterer, "in possession or in control of") should be construed to have a distinct meaning and operation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71] (esp at [71]) per McHugh, Gummow, Kirby and Hayne JJ. Of course, there will be some overlaps: e.g. an owner or demise charterer will often be in possession of a ship and, indeed, in control of her. But a voyage or time charterer may only meet the description "charterer" in s 19(a). Nor does s 19 require that the general maritime claim be one that the plaintiff could commence as a proceeding in rem against the ship referred to in s 19(a): Laemthong 190 CLR at 202-203. And, as Gaudron, Gummow and Kirby JJ said in Laemthong 190 CLR at 201 there may be control of a ship without possession. They said that one person may have possession of a ship and another control. Their Honours gave as an example the decision of the Privy Council in The " Utopia " [1893] AC 492 where the owners had not given up their rights to possession of their ship just after she was wrecked but a port authority assumed control of the wreck. In giving their Lordships' advice, Sir Francis Jeune said ( The "Utopia" [1893] AC at 498-499): "In the present case, the Utopia was certainly not abandoned by her owners in the sense that they gave up all rights of property and possession in her. On the contrary, they no doubt always intended to raise her if they could, .... It is clear, however, that before the collision with the Primula the port authority of Gibraltar, represented by the acting captain of the port, took from the owners, and itself assumed, the task of protecting other vessels from the wreck by means of the signals which it directed to be employed for the purpose. The owners of the Utopia yielded to the action of the port authority, and thenceforward stood aloof from the operation of lighting the wreck. In these circumstances, it appears to their Lordships that the control and management of the wreck, so far as related to the protection of other vessels from her, and of her from them, was properly transferred to the port authority . Further, their Lordships are unable to see how any part of the conduct of the owners of the Utopia can lay them open to a charge of negligence. Neither in allowing the port authority to take on itself the control of the lighting, nor in abstaining from interfering with the subsequent action of the port authority in the matter, do their Lordships think that any default can be imputed to them. It would be dangerous if an owner of a wreck were compelled, in order to avoid a personal responsibility, to interfere with the action taken by a public authority constituted for such purposes to ensure the safety of other vessels navigating those waters." (emphasis added) And in Laemthong 190 CLR at 190 Toohey J (and at 198 Gaudron, Gummow and Kirby JJ) referred to the definitions in maritime dictionaries of a disponent owner as a "person or company who controls the commercial operation of a ship, responsible for deciding the ports of call and the cargoes to be carried": see Sullivan, The Marine Encyclopaedic Dictionary (4 th ed, 1995) at 135; Brodie, Dictionary of Shipping Terms (2 nd ed, 1994) at 60. The definition in Brodie went on to say that very often the disponent owner was a shipping line which time chartered ships and issued its own liner bills of lading. As a practical matter, West Asia had and exercised control of the commercial operation of the ships, and, by its Indian employer, Capt Venkat, giving voyage instructions to the masters, decided the ports of call and cargoes to be carried. I am satisfied that West Asia was "... in control of" each of the " JBU Opal" and " JBU Onyx" . The side letters provide a clear admission of that control. And the evidence establishes that West Asia exercised it. The fact that WAMS also had responsibilities under the charterparties and exercised some of them does not mean that its parent did not have control of the chartered ships for the purposes of s 19(a). It is not decisive that WAMS was the charterer of the ships. This does not exclude, for the purposes of s 19(a), there simultaneously being an owner of them, such as Euroceania. Indeed, Gaudron, Gummow and Kirby JJ rejected a construction of s 19(a) that at any one time there must be only one person who could answer all of the descriptions in s 19(a) in respect of a wrongdoing ship: Laemthong 190 CLR at 201, see too at 204, Brennan CJ agreeing at 186, and see too per Toohey J at 191-192. The conclusion that West Asia was in control of the ships by which WAMS was the charterer is also consistent with the views of the Commission in ALRC 33 at [205] (cited with approval in Laemthong 190 CLR at 194 per Toohey J at 204-205 per Gaudron, Gummow and Kirby JJ) that s 19 could permit proceedings to be brought in rem against a ship owned by the relevant person even though that person is not the owner of the wrongdoing ship. Euroceania argued that the role assumed by West Asia under the side letters made it a charterer. It is not necessary to decide this in light of my conclusion that West Asia was in control of the chartered ships. However, I am not sure that the commercial intention was to make West Asia the charterer. Such a result does not sit easily with the language of either the charterparties themselves in which WAMS is named as charterer nor with that of the side letters that place West Asia in a position of responsibility for WAMS as the charterer. I am of opinion that West Asia was the owner of the " Gem of Safaga " at the time these proceedings were commenced and was in control of the " JBU Opal " and the " JBU Onyx " when the maritime claim arose out of the side letter agreements. That claim related to the use or hire of the latter two ships. Thus, West Asia's challenge to jurisdiction fails and its motion must be dismissed. I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 9 December 2009 Counsel for the Plaintiff: A W Street SC and B K Nolan Solicitor for the Plaintiff: Blake Dawson Counsel for the Defendant: G J Nell SC and C O Gleeson Solicitor for the Defendant: James Neill Solicitor Date of Hearing: 30 November, 1 3, 9 December 2009 Date of Judgment: 9 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1467.html


case_text: the considerations for each party's construction of "the owner" in s 19(b) are finely balanced. I am more inclined, as presently advised, to that put by West Asia. This is because the statutory right to proceed in rem should be construed, where possible, harmoniously with concepts of the maritime law forming part of the general law of nations, as Lord Mansfield CJ characterised it in Luke v Lyde [1759] EngR 18 ; (1759) 2 Burr 882 at 887. In The Tolten [1946] P 146 at 155 Scott LJ reflected this approach when he said that British maritime law derived originally, and continued to get inspiration, from the general law of the sea prevailing amongst maritime nations. This reasoning lay behind the observations of the Australian Law Reform Commission (ALRC 33 at [206]) that major maritime jurisdictions and the 1952 Arrest Convention have extended the right to proceed in rem only to sister ships strictly related to those in the sole ownership (even if there is more than one co-owner) of the relevant person or persons that had the requisite connection (in Australia defined in s 19(a)) with the offending ship. The critical factual issue posed in relation to s 19(b) is whether Euroceania has proved that West Asia is the owner of the " Gem of Safaga ". Euroceania advanced a number of arguments which, when considered with West Asia's responses, were of varying levels of complexity. First, Euroceania relied on descriptions of West Asia as sole owner of the ship in a number of public documents. West Asia sometimes appeared as owner of nine shares, and other times appeared as sole owner of the ship in various registers maintained by the Republic of India, ship classification societies and Lloyd's. However, as the variety of these entries suggests, those documents leave the issue equivocal. I am not satisfied that the entries recording West Asia as sole owner were made or continued unchanged because it had caused those recordings to be made or remain. For example, the ship classification society, the Indian Register of Shipping, has recorded West Asia as sole owner despite its surveyor at Port Suez issuing the provisional certificate of Indian Registry on behalf of the Republic of India that recorded Four M as having one of the ten shares.


case_text: it is not necessary or conclusive that a person be registered as owner or hold the legal title to a ship for him or her to be found to be "the owner" within the meaning of ss 17, 18 or 19 of the Act: Cape Moreton 143 FCR at 65 [92], 73 [118], 84 [161]-[162]. And, a person who is the beneficial owner of the arrested res , ordinarily, will have the immediate right to exercise dominion over and to enjoy or control that res : Cape Moreton 143 FCR at 85 [168]; Kent v SS "Maria Luisa" (No 2) [2003] FCAFC 93 ; (2003) 130 FCR 12 at 33-34 [61] - [66] per Tamberlin and Hely JJ; Malaysia Shipyard and Engineering Sdn Bhd v "Iron Shortland" as the Surrogate for the Ship "Newcastle Pride" (1995) 59 FCR 535 at 547D-F per Sheppard J; see too at 547F-548A. Neither party disputed the correctness of the principles relating to the meaning of "the owner" in ss 17, 18 and 19 stated in Iron Shortland 57 FCR 535 ; Cape Moreton [2005] FCAFC 68 ; 143 FCR 43 and Maria Luisa [2003] FCAFC 93 ; 130 FCR 12. Euroceania accepted that there was no basis to lift the corporate veil of WAMS: cf Iron Shortland 59 FCR at 540-548 esp at 546-547; The "Maritime Trader" [1981] 2 Lloyd's Rep 153 at 157 per Sheen J; Berlingieri on Arrest of Ships (4 th ed, 2006) at 166-168 [52.446]- [52.452]. Instead, it put its case on the basis that WAMS was the agent of the real charterer, West Asia. Euroceania also asserted that in s 19(a) the word "charterer" had to be construed in the context that ships could be chartered by demise, as well as on voyage or timecharter and that strings of subcharterers could exist during any particular maritime adventure or voyage.


case_text: in contrast to Four M's generosity in not taking any payments, Mr Qadir continued to be paid during this period in excess of the amount he could draw as salary, requiring the approval of the government and then the shareholders to West Asia waiving its right to recover that excess, If he or anyone other than West Asia were beneficially interested in Four M's share of the " Gem of Safaga " it is commercially inexplicable, on the evidence before me, why no payment at all has ever been made to Four M. West Asia argued that there were two other vessels in co-ownership between it and Four M and the state of accounts on those may be a reason for there having been no payments to Four M. But, that is an invitation to speculate on a matter for which West Asia could readily have provided an explanation. In these circumstances I can only draw inferences on the evidence that the parties have adduced and in light of the absence of further or countervailing evidence to explain what Four M's interest and role in holding the one share in the ship was: cp Mead v Mead [2007] HCA 25 ; (2007) 235 ALR 197 at 200-201 [13] per Gleeson CJ, with whom Hayne, Callinan, Heydon and Crennan JJ agreed; CEPU 162 FCR at 488-489 [70]-[73].


case_title: MV "Elizabeth" (AIR 1993 SC 1014)

case_text: evidence on Indian law was given by Ananjan Mitter, whose practise substantially involved Indian maritime law, including litigation over the arrest of vessels. Mr Mitter said that although India had not acceded to the International Convention on the Arrest of Ships 1999 ( the 1999 Arrest Convention ), it was recognised as part of the common law of India. He referred to an appellate decision MV "Sea Success I" v Liverpool and London Steamship Protection and Indemnity Association Ltd (AIR 2002 Bombay 151 at [18]-[19], [26]) which in turn cited from a decision of the Supreme Court of India that expressed this view of the common law of that nation: MV "Elizabeth" (AIR 1993 SC 1014) at [65] and [89]. Mr Mitter relied on the provisions of Art 3(2) of the 1999 Arrest Convention which provides: "2. Arrest is also permissible of any other ship or ships which, when the arrest is effected, is or are owned by the person who is liable for the maritime claim and who was, when the claim arose: (a) owner of the ship in respect of which the maritime claim arose; or (b) demise charterer, time charterer or voyage charterer of that ship. This provision does not apply to claims in respect of ownership or possession of a ship." Mr Mitter had not found any Indian judicial interpretation of s 25(c) and (d) of the Indian Act. He explained that in such situations it was usual to consider English law on similar issues. He opined that the effect of s 3(23) that the effect, under Indian law, of s 3(23) was that a person was the owner, for the purposes of enlivening jurisdiction in India to arrest a ship, if he was registered under s 25 as owner of a share, even if there were other registered shareholders. He said that the consequence of this construction of the Indian Act was that a person would be found to be the owner so as to permit a vessel to be arrested in India even if he held only one of the 10 registered shares. Mr Mitter expressed the opinion that neither West Asia nor Four M could sell separately the respective nine shares or one share that they held, no doubt because of s 25(d) of the Indian Act. But he said that the effect of s 3(23) was that under Indian law West Asia was the owner of the " Gem of Safaga " and it could be arrested in India as security for maritime claims that had arisen against West Asia irrespective of the fact that West Asia jointly owned the ship with Four M. In MV "Sea Success I " (AIR 2002 Bombay) at 184 [56] the Court held that it would follow the broad international legal consensus that the test for beneficial ownership of the shares in a ship was whether the person had a right "... to sell, dispose of or alienate the shares in the ship". The Court also refused to lift the corporate veil between parent and subsidiary companies: MV "Sea Success I" (AIR 2002 Bombay) at 181-182 [54]. Earlier, the Court quoted a passage from the reasons of the Supreme Court of India in MV "Elisabeth" (AIR 1993 SC 1014) at [64]-[65] that recognised the procedural theory of Admiralty jurisdiction in India: i.e. the action in rem overcame the difficulty of personal service on a relevant person and either compelled him to appear to furnish security for release of the res or, in default of appearance, to proceed directly against the res . Although I need not finally decide this issue, I incline to the opinion that the reasoning to which I have referred in MV "Sea Success I" (AIR 2002 Bombay), especially, at 182-183 [55]-[56] and the quotation from MV "Elisabeth" (AIR 1993 SC 1014) at [64]-[65] in (AIR 2002 Bombay) at 163-164 [18]) align the unwritten Indian maritime law with the internationally accepted concepts of the degree of beneficial ownership to justify arrest of a vessel namely that the owner must have, at least, the beneficial right to sell or dispose, not of shares in the ship, but the ship itself. I am not persuaded that Indian law would regard West Asia as having that right merely because of the definition of "owner" in s 3(23) of the Indian Act.


case_title: MV "Sea Success I" v Liverpool and London Steamship Protection and Indemnity Association Ltd (AIR 2002 Bombay 151)

case_text: MV "Sea Success I " (AIR 2002 Bombay) at 184 [56] the Court held that it would follow the broad international legal consensus that the test for beneficial ownership of the shares in a ship was whether the person had a right "... to sell, dispose of or alienate the shares in the ship". The Court also refused to lift the corporate veil between parent and subsidiary companies: MV "Sea Success I" (AIR 2002 Bombay) at 181-182 [54]. Earlier, the Court quoted a passage from the reasons of the Supreme Court of India in MV "Elisabeth" (AIR 1993 SC 1014) at [64]-[65] that recognised the procedural theory of Admiralty jurisdiction in India: i.e. the action in rem overcame the difficulty of personal service on a relevant person and either compelled him to appear to furnish security for release of the res or, in default of appearance, to proceed directly against the res . Although I need not finally decide this issue, I incline to the opinion that the reasoning to which I have referred in MV "Sea Success I" (AIR 2002 Bombay), especially, at 182-183 [55]-[56] and the quotation from MV "Elisabeth" (AIR 1993 SC 1014) at [64]-[65] in (AIR 2002 Bombay) at 163-164 [18]) align the unwritten Indian maritime law with the internationally accepted concepts of the degree of beneficial ownership to justify arrest of a vessel namely that the owner must have, at least, the beneficial right to sell or dispose, not of shares in the ship, but the ship itself. I am not persuaded that Indian law would regard West Asia as having that right merely because of the definition of "owner" in s 3(23) of the Indian Act.


case_text: West Asia must still be a relevant person within the meaning of s 19(a) in one of the two ways on which Euroceania relies. Each of the connecting factors referred to in s 19(a) (the owner, charterer, "in possession or in control of") should be construed to have a distinct meaning and operation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71] (esp at [71]) per McHugh, Gummow, Kirby and Hayne JJ. Of course, there will be some overlaps: e.g. an owner or demise charterer will often be in possession of a ship and, indeed, in control of her. But a voyage or time charterer may only meet the description "charterer" in s 19(a). Nor does s 19 require that the general maritime claim be one that the plaintiff could commence as a proceeding in rem against the ship referred to in s 19(a): Laemthong 190 CLR at 202-203.


case_text: side letters, on their face, are phrased as an agreement between the three parties, Euroceaonia, WAMS and West Asia. They express a relationship between performance of WAMS' obligations under the charterparties and each of West Asia and WAMS. In one sense, the side letters could be thought of as being a guarantee by West Asia that its subsidiary would perform in the second class of guarantees of payment of instalments due by a principal debtor referred to by Mason CJ in Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 at 256-257: i.e. that a default by WAMS was also a breach of West Asia's obligations to Euroceonia because West Asia had not brought about performance by WAMS. Curiously, however, these commercial parties did not use the word "guarantee" in the side letters. There was obvious commercial sense for Euroceania to have sought some binding assurance from WAMS' more substantial part-parent of the performance of a 5 year charter of the two ships. Importantly, the ships were to be, and were, employed as part of West Asia's fleet. Here, the side letters contain admissions by West Asia concerning its relationship to WAMS. What is the natural and ordinary meaning of a person agreeing that he is "ultimately responsible for the true fulfilment of" another's obligations under charterparty between the latter and a third party? The quoted words refer to a positive role in relation to performance of the charterparty. They are consistent with West Asia assuming a primary, or at least a joint and several, liability to Euroceania. In Sunbird Plaza 166 CLR at 255-256, Mason CJ (with whom Deane, Dawson and Toohey JJ agreed) said: "It may be that as a matter of history the view that the guarantor has an obligation "to see to it" that the debtor performs his obligation explains why the guarantor is not entitled to notice of the debtor's default and why the creditor's cause of action arises on that default. But the view certainly does not accord with the nature of the guarantor's obligation as it is understood today. Rarely do guarantors have control of, or a capacity to influence, the principal debtor such that they would willingly assume an obligation to ensure that he performs his primary obligation . It is fictitious and quite unrealistic to suggest that this version of the guarantor's undertaking, rather than a promise to "answer for" the debt or default of the debtor, is the true nature of the guarantor's obligation." (emphasis added) However, Mason CJ concluded that there was no common rule applicable to all guarantees and the parties were free to make such agreement as they chose: Sunbird Plaza 166 CLR at 256. There, the guarantor undertook that, in effect, the debtor would perform its contractual obligations. In contrast, the side letters involve West Asia itself being responsible to fulfil the charterer's obligations, not merely to cause its subsidiary to do so. And, here West Asia did have control of and power to influence what WAMS did, including causing it to enter into the charterparties in the first place. The side letters demonstrate the reality of West Asia's control of WAMS. And, West Asia was in control of the " JBU Opal " and " JBU Onyx " in a practical, business sense. As the instructions of 21 April 2009 to the master of the " JBU Opal " said, the commercial operations of the ship would be handled by West Asia on behalf of WAMS. I infer that this recognised the business reality that, although WAMS was the charterer, it caused the two chartered ships to operate as West Asia directed.


case_text: entry into the memorandum of agreement, on 2 February 2007, West Asia obtained an equitable interest in the ship that would be capable of protection by an order for specific performance against Tedross: Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315 at 332-333 [53] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ. And, as addendum No 1 recognised, West Asia continued as between Tedross and itself to remain fully liable for the performance of the purchaser's obligations. That was, in fact, the reality of what occurred when West Asia arranged all the funding for and completion of the purchase. Indeed, the terms of addendum No 1 referred to West Asia and Four M as the purchasers without identifying any particular share either would take on completion. That was suggestive of the two purchasing in equal shares as at 16 February 2007. However, the co-ownership agreement did identify proportionate interests of West Asia or Four M. The accounting and journal entries made in West Asia's books record that initially it received or paid the full amounts of hire and expenses and next apportioned these to it and Four M. This accounting treatment, however, may be a convenient way of dealing with third parties and is not conclusive in itself. West Asia also argued that the co-ownership agreement prevented it from using the authority it was granted to dispose of the ship or even to mortgage it other than for the purposes of the co-ownership. It contended that under that agreement West Asia only had power to dispose of its own shares in the ship. And it relied on the registration, in the official Register of Indian Shipping of the bank's mortgage against the separate entries for the shares held by West Asia and Four M. More accurately, however, cl 2(b) prevented West Asia or Four M from disposing of its shares in the ship without the others consent.


case_text: a valuable discussion, Reyes J (with whom Ma CJHC and Stone J agreed in separate judgments) considered the, perhaps narrower, expression "beneficial owner" as used in s 12B(4) of the Hong Kong High Court Ordinance (Cap 4) in The "Convenience Container" [2007] 3 HKLRD 575. Reyes J concluded that the expression focussed "... simply on matters of title, namely, the right to sell or dispose of a ship": " Convenience Container " [2007] 3 HKLRD at 584 [43]. Reyes J also observed that beneficial ownership was not merely concerned with control or administration of a vessel or even the enjoyment of the proceeds of its sale. He recognised that these may or may not be useful as evidence from which a finding of ownership can be made. But he held that the key question was whether the relevant person in s 19 had title, as "the owner" of the res in order to support its arrest: cp "Convenience Container " [2007] 3 HKLRD at 583-584 [35]-[42]; see too per Ma CJHC at 606-607 [165]-[167] and Stone J at 595-597 [108]-[115]; I Congreso del Partido [1978] QB 500 at 538E-F, 541B per Robert Goff J; The Permina 3001 [1979] 1 Lloyd's Rep 327 at 329 per Wee CJ in the Singapore Court of Appeal; and The "Tychy" [1999] 2 Lloyd's Rep 11 at 20 per Clarke LJ, Otton and Waller LJJ agreeing. Each of control and, indeed, possession of property is not necessarily related to or dependent upon the person exercising the control, or in possession, having title to the property: cp The "Permina 3001" [1979] 1 Lloyd's Rep at 329 per Wee CJ (see also "Convenience Container " [2007] 3 HKLRD at 584 [42]) who said: "In our opinion, it would be a misuse of language to equate full possession and control of a ship with beneficial ownership as respects all the shares in a ship. The word "ownership" connotes title, legal or equitable whereas the expression "possession and control", however full and complete, is not related to title. Although a person with only full possession and control of a ship, such as a demise charterer has the beneficial use of her, in our opinion he does not have the beneficial ownership as respects all the shares in the ship and the ship is not "beneficially owned as respects all the shares therein" by him within the meaning of s. 4 (4)."


case_text: Francesco Berlingieri said that Art 3(2) in the 1952 Arrest Convention did not allow a sister ship to be arrested unless it was fully owned by the same person or persons who owned the ship in respect of which the claim arose: Berlingieri on Arrest of Ships (3 rd ed, 2000) at 112-113 [1.444] (4 th ed: 2006) at 159 [52.433]. And a similar conclusion was reached by Prothonatory Hargrave on the construction of s 43(8) of the Canadian Federal Courts Act which required the arrested ship to be "beneficially owned": The "Looiersgracht" [1995] 2 Lloyd's Rep 411 at 415.


case_text: accepted that there was no basis to lift the corporate veil of WAMS: cf Iron Shortland 59 FCR at 540-548 esp at 546-547; The "Maritime Trader" [1981] 2 Lloyd's Rep 153 at 157 per Sheen J; Berlingieri on Arrest of Ships (4 th ed, 2006) at 166-168 [52.446]- [52.452]. Instead, it put its case on the basis that WAMS was the agent of the real charterer, West Asia. Euroceania also asserted that in s 19(a) the word "charterer" had to be construed in the context that ships could be chartered by demise, as well as on voyage or timecharter and that strings of subcharterers could exist during any particular maritime adventure or voyage.


case_title: The "Tychy" [1999] 2 Lloyd's Rep 11

case_text: a valuable discussion, Reyes J (with whom Ma CJHC and Stone J agreed in separate judgments) considered the, perhaps narrower, expression "beneficial owner" as used in s 12B(4) of the Hong Kong High Court Ordinance (Cap 4) in The "Convenience Container" [2007] 3 HKLRD 575. Reyes J concluded that the expression focussed "... simply on matters of title, namely, the right to sell or dispose of a ship": " Convenience Container " [2007] 3 HKLRD at 584 [43]. Reyes J also observed that beneficial ownership was not merely concerned with control or administration of a vessel or even the enjoyment of the proceeds of its sale. He recognised that these may or may not be useful as evidence from which a finding of ownership can be made. But he held that the key question was whether the relevant person in s 19 had title, as "the owner" of the res in order to support its arrest: cp "Convenience Container " [2007] 3 HKLRD at 583-584 [35]-[42]; see too per Ma CJHC at 606-607 [165]-[167] and Stone J at 595-597 [108]-[115]; I Congreso del Partido [1978] QB 500 at 538E-F, 541B per Robert Goff J; The Permina 3001 [1979] 1 Lloyd's Rep 327 at 329 per Wee CJ in the Singapore Court of Appeal; and The "Tychy" [1999] 2 Lloyd's Rep 11 at 20 per Clarke LJ, Otton and Waller LJJ agreeing.


case_title: The " Utopia " [1893] AC 492

case_text: as Gaudron, Gummow and Kirby JJ said in Laemthong 190 CLR at 201 there may be control of a ship without possession. They said that one person may have possession of a ship and another control. Their Honours gave as an example the decision of the Privy Council in The " Utopia " [1893] AC 492 where the owners had not given up their rights to possession of their ship just after she was wrecked but a port authority assumed control of the wreck. In giving their Lordships' advice, Sir Francis Jeune said ( The "Utopia" [1893] AC at 498-499): "In the present case, the Utopia was certainly not abandoned by her owners in the sense that they gave up all rights of property and possession in her. On the contrary, they no doubt always intended to raise her if they could, .... It is clear, however, that before the collision with the Primula the port authority of Gibraltar, represented by the acting captain of the port, took from the owners, and itself assumed, the task of protecting other vessels from the wreck by means of the signals which it directed to be employed for the purpose. The owners of the Utopia yielded to the action of the port authority, and thenceforward stood aloof from the operation of lighting the wreck. In these circumstances, it appears to their Lordships that the control and management of the wreck, so far as related to the protection of other vessels from her, and of her from them, was properly transferred to the port authority . Further, their Lordships are unable to see how any part of the conduct of the owners of the Utopia can lay them open to a charge of negligence. Neither in allowing the port authority to take on itself the control of the lighting, nor in abstaining from interfering with the subsequent action of the port authority in the matter, do their Lordships think that any default can be imputed to them. It would be dangerous if an owner of a wreck were compelled, in order to avoid a personal responsibility, to interfere with the action taken by a public authority constituted for such purposes to ensure the safety of other vessels navigating those waters." (emphasis added)


case_text: Asia has, since its acquisition, contracted with masters and officers for the ship as sole employer, writing to them and: "offer[ing] the post of Master with effect from the date of joining onboard the vessel M.V. Gem of Sagafa owned by West Asia Maritime Limited. " (original emphasis) The exercise of a right to appoint the master and officers is a strong indicium of ownership of a ship during a maritime adventure: The Baumwoll Manufactur von Carl Scheibler v Furness [1893] AC 8 at 17 per Lord Herschell LC. West Asia contended that the arrangements it had made with Four M should be treated as valid and effectual on their face. It said that by agreeing to meet its share of the expenses for operating the ship and executing finance and mortgage documents to support the borrowing to purchase her, Four M gave value for its one share in the ship. However, no financial accounts or other documents are in evidence to show that Four M had any assets or financial substance to support its participation in the acquisition and holding of the ship. Its 2009 annual return showed that it had a paid up capital of about 18 million rupees and debts of about 220 million rupees.


case_text: Parliament has provided that the unique remedy of an action in rem is available only in the circumstances codified in the Act, especially in ss 14-19 and 29. Those provisions have to be read and construed in their legal and historical context as giving effect to the judicial power of the Commonwealth in matters of Admiralty and maritime jurisdiction under s 76(iii) of the Australian Constitution . The Act and its definitions of maritime claims have both a domestic and an international context informed by references such as ALRC 33, the 1952 Arrest Convention and, where the same concepts and defined terms are used, English legislation and case law: The Owners of the Motor Vessel "Iran Amanat v KMP Coastal Oil Pte Ltd [1999] HCA 11 ; (1999) 196 CLR 130 at 138 [20] per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ.


case_text: Act provides a code governing the right to commence a proceeding in rem against a ship (s 14). When challenging jurisdiction as a preliminary issue under the Act, the plaintiff must establish the facts on which jurisdiction exists on the balance of probabilities, in light of all the evidence advanced: The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 426 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. The evidence ranged over a wide field. It included examining the circumstances in which the " Gem of Safaga " was purchased in early 2007 and how the other two, chartered, ships were operated. The chief operating officer of West Asia, Subhash Joshi, was responsible for the acquisition and financing of its fleets. He gave evidence to explain how the " Gem of Safaga " was acquired. She was built in 1982 and is of 227m LOA and 65,163 deadweight tonnes. The negotiations for the purchase of the ship " Gem of Safaga " initially proceeded through brokers acting for the vendor, Tedross Navigation SA, and for West Asia. Since s 19 confers jurisdiction on a court, it should not be construed or hedged about by making implications or imposing limitations that do not appear in its express terms: Shin Kobe Maru 181 CLR at 421; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at 361 [178] per Gummow, Hayne, Heydon and Kiefel JJ. Additionally, s 15AB of the Acts Interpretation Act 1901 (Cth) permits the meaning of an expression in an Act to be confirmed by reference to a report such as ALRC 33 (see s 15AB(1)(a) and (2)(b)): Laemthong International Lines Co Ltd v BPS Shipping Ltd [1997] HCA 55 ; (1997) 190 CLR 181 at 189 per Brennan CJ, 190 per Toohey J, 204 per Gaudron, Gummow and Kirby JJ.


case_title: The Permina 3001 [1979] 1 Lloyd's Rep 327


case_text: of ownership "are not amenable to crisp, comprehensive definition in the abstract": Tisand Pty Ltd v The Owners of the Ship MV Cape Moreton (Ex Freya) [2005] FCAFC 68 ; (2005) 143 FCR 43 at 73 [119] per Ryan and Allsop JJ; see too " Boomerang I " 151 FCR at 411 [33] per Allsop J. Ryan and Allsop JJ said that in the context of ss 17, 18 and 19 of the Act the words "ownership" or "owner" connote the right to have and dispose of dominion, possession and enjoyment of the ship, subject to intervening interests. The word "owner" is used in those sections in a proprietary sense. This reflects the purpose of the Act to require any property arrested to belong to the relevant person. However, it is not necessary or conclusive that a person be registered as owner or hold the legal title to a ship for him or her to be found to be "the owner" within the meaning of ss 17, 18 or 19 of the Act: Cape Moreton 143 FCR at 65 [92], 73 [118], 84 [161]-[162]. And, a person who is the beneficial owner of the arrested res , ordinarily, will have the immediate right to exercise dominion over and to enjoy or control that res : Cape Moreton 143 FCR at 85 [168]; Kent v SS "Maria Luisa" (No 2) [2003] FCAFC 93 ; (2003) 130 FCR 12 at 33-34 [61] - [66] per Tamberlin and Hely JJ; Malaysia Shipyard and Engineering Sdn Bhd v "Iron Shortland" as the Surrogate for the Ship "Newcastle Pride" (1995) 59 FCR 535 at 547D-F per Sheppard J; see too at 547F-548A. Neither party disputed the correctness of the principles relating to the meaning of "the owner" in ss 17, 18 and 19 stated in Iron Shortland 57 FCR 535 ; Cape Moreton [2005] FCAFC 68 ; 143 FCR 43 and Maria Luisa [2003] FCAFC 93 ; 130 FCR 12. And the person or persons entered on an international register of ships is not necessarily the same person who will be found to be "the owner" for the purposes of s 19(b) of the Act: " Cape Moreton " 143 FCR at 65 [92]. I am not satisfied that the disparate information in the various registers establishes, individually or collectively, that West Asia is "the owner" of the ship for present purposes under s 19(b). Euroceania also relied on West Asia being registered as sole owner of the ship by The Britannia Steam Ship Insurance Association Limited in the protection and indemnity section of that P&I Club's register. That registration was an admission by West Asia since the rules provided for the register to maintain the names of members and their interests in a ship, listing those names in order of their rights of seniority. I infer that West Asia caused and maintained its listing as sole owner. That listing was last updated on 23 November 2009, well after this dispute arose. The critical issue is whether Euroceania has established, on the evidence, that whatever role Four M has it is not an owner of the ship within the meaning of s 19(b). In " Cape Moreton " 143 FCR at 73-74 [122] Ryan and Allsop JJ left open whether the use of the definite article before the word "owner" in s 19(b) allowed a construction that treated it as including more than one owner. Such a construction of s 19(b) would permit an arrest of a ship partly owned by the relevant person in s 19(a) but also partly owned by a stranger to the general maritime claim: see too s 23 of the Acts Interpretation Act which provides that, unless the contrary intention appears, words in the singular number include the plural and vice versa. I am inclined to the view that s 19(b) does evince a contrary intention, particularly in light of the discussion that I have quoted above from ALRC 33 at [206] and [207]. However, I do not need to express a final view on this since I have reached a firm conclusion that West Asia is the sole person who is "the owner" of the ship for the purposes of s 19(b). However, in those paragraphs, Ryan and Allsop JJ were discussing other authorities. They expressed their conclusion in " Cape Moreton " 143 FCR at 78-79 [140] as follows: "... the law of Australia will govern the question of the characterisation of such rights (and their existence, nature and extent) as are derived by Freya or Alico from the transaction of transfer or assignment of the ship. The existence, nature and extent of such rights created or recognised by the transaction will be governed or affected by any law that Australian rules of private international law regard as relevant. The characterisation of those rights as "ownership" or not and of either Freya or Alico as "the owner" is then undertaken by reference to Australian law. The process involves applying an Australian statute dealing with authority to commence a suit in an Australian court to the facts as found, those facts including the rights created or recognised by the foreign law mandated by the applicable Australian rule of private international law. The approach that we favour entails a rejection of the proposition that the law of the forum (as domestic law only and not including its rules of private international law) applies. We see no justification for limiting the role of the law of the forum in this regard. To do so would, by necessity, leave out of account in the assessment of the proprietary question any foreign law relevant to the assignment of the ship." They concluded that the law of the place in which the ship is registered ordinarily will be determinative of questions of title, property and assignment: " Cape Moreton " 143 FCR at 79-80 [146]-[148]. Of course, questions of the public policy of the law of the forum and the forum's own legislation may lead to a different result, but no issue on these latter questions arose in this matter. However, the Indian Act, like similar flag state statutes, provides only for a register that is evidence of title and does not provide for a system of title by registration. Thus, no notice of any trust can be registered: see s 70 of the Indian Act; see too "Cape Moreton " 143 FCR at 81-84 [152]-[159]. West Asia argued that it did not have the sole power to dispose of the " Gem of Safaga " because of Four M's registration of its one share and s 25(d) of the Indian Act. Relevantly, ss 3(23)(a) and 25 of the Indian Act provides: "3 ( 23 ) "owner" means - ( a ) in relation to a ship, the person to whom the ship or a share in the ship belongs; 25. Register book.- Every registrar shall keep a book to be called the register book and entries in that book shall be made in accordance with the following provisions: - ( a ) the property in a ship shall be divided into ten shares; ... ( c ) a person shall not be entitled to be registered as owner of a fractional part of a share in a ship; but any number of persons not exceeding five may be registered as joint owners of a ship or of any share or shares therein; ( d ) joint owners shall be considered as constituting one person and shall not be entitled to dispose in severalty of any interest in a ship or any share therein in respect of which they are registered; ..."


case_text: when a person purchases and pays for real or personal property and directs that the legal title be transferred into the name of a stranger, the law presumes, in the absence of evidence to the contrary, that the property is held on a resulting trust for the purchaser: Charles Marshall Pty Ltd v Grimsley [1956] HCA 28 ; (1956) 95 CLR 353 at 363-364 per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ. Here, as West Asia argued, the co-ownership agreement, the mortgage given by Four M and West Asia's accounting entries are evidence to the contrary. Evidence of the intention of the purchaser at the time of the transaction or so immediately after it that it constitutes a part of it and admissions against interest, will be relevant to rebut the presumption. So will evidence of subsequent dealings: Trustees of the Property of Cummins (a Bankrupt) v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 at 300-301 [65] - [67] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. If the stranger assumes liability under a mortgage given to obtain finance for the purchase, this conduct can be evidence rebutting the presumption: Calverley v Green [1984] HCA 81 ; (1984) 155 CLR 242 at 252 per Gibbs CJ, 257-258 per Mason and Brennan JJ, at 268 per Deane J.


case_text: carries the ultimate burden of proof that the jurisdictional facts exist on which the arrest can be justified. It must establish those facts on the balance of probabilities taking into account all relevant matters: s 140 of the Evidence Act 1995 (Cth); see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 479-482 [29] - [38] , 488-489 [70]-[73] per Weinberg, Bennett JJ and myself. And, as Lord Mansfield CJ said long ago in Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 65: "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted." See too: Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ; at 233 per Brennan and Toohey JJ.


case_text: Mr Croker told me this morning that he did not have sufficient time to prepare for the hearing of the objection to competency but I am satisfied that he is on sufficient notice of the need to be able to deal with the matter. Indeed, it is implicit in his approach to the application today that he accepts that the questions of law stated in the Notice of Appeal do not raise questions of law within the well known authorities of this Court. Those authorities include the decision in Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 327. Stone J referred to the authorities at [16]ff in her decision to which I referred above. 19 It is plain in my view that the questions of law do not comply with the principles stated in the authorities. They are simply not questions of law. Moreover, they are not even relevant to the issues raised before the Administrative Appeals Tribunal. The purported questions cavil with the issue of whether Mr Croker is eligible for the Disability Support Pension. They are not relevant to any issue which was raised before the Administrative Appeals Tribunal.


case_outcome: referred to

case_text: Third, Mr Croker is well on notice of the fact that an appeal from the Administrative Appeals Tribunal must be on a question of law. On 27 June 2008 Stone J dismissed a proceeding brought by Mr Croker on that very ground: see Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 971 ( Croker v Sec, Dept EEWR ). 17 Fourth, Ms Watson informs me that there are a number of unsatisfied costs orders made against Mr Croker. One such order is an order that Mr Croker pay the costs of an unsuccessful application which was heard by Branson J. That decision is the matter which was referred to in [56] of the reasons for decision of the Social Security Appeals Tribunal (set out above). Also Ms Watson refers to an unsatisfied order for security for costs of an application for leave to appeal which Mr Croker has brought against the decision of Branson J. It appears that there are also other unsatisfied costs orders. 21 In Croker v Sec, Dept EEWR [2008] FCA 971 , Stone J observed at [7] that these purposes are recognised in s 43(2B) of the Act, which provides that where the Tribunal is requested under s 43(2A) to give reasons, the reasons are to include the Tribunal's findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Her Honour referred to a comparatively recent decision of Buchanan J in Jordan v Australian Postal Corporation (2007) 99 ALD 303 at 314 on this issue.


case_text: First, Ms Watson observed that the address given is not a proper address for service. Indeed, in Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942 Bennett J found that this very address does not comply with the Rules of Court: see in particular [9] and [25] of her Honour's decision. 15 Second, it seems to me to be plain that either the email was received by Mr Croker or, if not, he does not check his emails notwithstanding the fact that the email address appears in his purported address for service in the Notice of Appeal.


case_text: In Croker v Sec, Dept EEWR [2008] FCA 971 , Stone J observed at [7] that these purposes are recognised in s 43(2B) of the Act, which provides that where the Tribunal is requested under s 43(2A) to give reasons, the reasons are to include the Tribunal's findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Her Honour referred to a comparatively recent decision of Buchanan J in Jordan v Australian Postal Corporation (2007) 99 ALD 303 at 314 on this issue.


case_text: Notwithstanding this, Mr Croker sought time to enable him to file an Amended Notice of Appeal raising two purported questions of law. The first question he seeks to raise is whether or not the delivery of the reasons by Senior Member Allen in the form of his judgment which incorporates a transcript can be said to be reasons for decision given in accordance with s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth). In Martin v Australian Postal Corp [1999] FCA 655 ; (1999) 29 AAR 420 , Burchett J at 428 observed that the essence of the requirement that the Tribunal give reasons is that its decision must be understandable. His Honour referred to the purposes that are served by this rule.


case_outcome: affirmed

case_text: applicant applies for an extension of time in which to file and serve a notice of appeal from a decision in the Federal Magistrates Court in which Smith FM dismissed an application to review a decision of the Refugee Review Tribunal ( SZNGR v Minister for Immigration and Citizenship [2009] FMCA 630). The Tribunal in turn affirmed a decision of the delegate refusing the applicant's application for a protection visa. The applicant's explanation for the delay in filing a notice of appeal, as set out in an affidavit affirmed by him, is that he did not know Australian law and was not aware that he had 21 days after the decision was handed down. There is no need to deal with the aspect of delay further because the Minister concedes that the delay is not great and could not be said to cause any prejudice. However, it is necessary for the Court to have regard to the merits of the appeal in order to decide if the extension of time should be granted. The draft notice of appeal contains two grounds: "His Honour Smith failed to accept grounds listed in my amended application." "The Tribunal failed to understand my claim." On consideration of the grounds in the amended application that were before his Honour, and on consideration of the Tribunal decision, it is apparent that the Tribunal decision was based upon the following bases which, in turn, needed to be considered by Smith FM in assessing the applicant's application to him. The Tribunal considered the different incidents described by the applicant and set them out in some detail in its reasons. The Tribunal recognised that the applicant claimed to fear persecution in Lebanon on the grounds of religion and perceived association with, or membership of, the Lebanese forces. His claim was also based upon a lack of employment resulting from the unstable situation in Lebanon and the conflict in the area in which he lived and worked. The Convention reasons advanced by the applicant were religion and perceived political association. The Tribunal found that none of the incidents, individually or cumulatively, amounted to persecution within the meaning of s 91R of the Migration Act 1958 (Cth), either because they did not come within the description of serious harm within the instances set out in s 91R(2) , or because the description did not involve systematic and discriminatory conduct, or both. Further, the Tribunal concluded that in any event, the incidents described by the applicant did not occur for a Convention reason or by reason of a Convention characteristic. The Tribunal found that any inability of the applicant to earn a living by delivering goods to Tripoli was as a result of general conflict and not for a Convention reason. The Tribunal found that there was no relevant Convention nexus with the applicant's claimed financial difficulties and concluded that there was no real chance that the applicant would be persecuted for a Convention reason if he were to return to Lebanon now or in the reasonably foreseeable future.


case_text: An appeal from a judgment of the Federal Magistrates Court is an appeal by way of re-hearing. To succeed on appeal the appellant needs to show that the Federal Magistrate made an error of law or fact or that his Honour's discretion miscarried; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424.


case_text: Section 52 (1) of the Bankruptcy Act 1966 (Cth) provides for the proof of certain matters and states that the Court, 'if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor'. It is accepted that the section gives the Court discretion to decline to make the order if persuaded 'that the public interest in dealing with the insolvent debtor and the rights of individual creditors are outweighed by other considerations'; Totev v Sfar (2006) 230 ALR 236 at 243. See also Cain v Whyte [1933] HCA 6 ; (1933) 48 CLR 639 at 645-6 and 648. It is for the debtor to persuade the Court that the circumstances are such as to warrant an exercise of the Court's discretion in his or her favour.


case_title: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194


case_text: Where a petitioning creditor relies on a judgment debt the Court must be satisfied as to the validity of the debt and, to that extent, it may be said that the judgment 'is never conclusive in bankruptcy'; Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224. It is accepted however, that the Court will not investigate validity as a matter of course; Simon v Vincent J. O'Gorman Pty Ltd (1979) 41 FLR 95 at 111, Commonwealth Bank of Australia v Jeans [2005] FCA 978. There must be something to suggest that no real debt lay behind the judgment, whether because of fraud, collusion or miscarriage of justice; Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 357; Udovenko v Mitchell (1997) 79 FCR 418 at 421.


case_text: Although the discretion conferred by s 27 is not expressed to be limited in any way, the principles that should guide the Court in its exercise are well established and uncontroversial. In general the Court must be satisfied that the evidence could not, with reasonable diligence, have been adduced at the trial; Council of the City of Greater Wollongong v Cowan [1955] HCA 16 ; (1955) 93 CLR 435 at 444. Moreover the evidence that was not presented at the trial must have sufficient probative value that it is likely to have produced a different result had it been presented at the trial; Guss v Johnstone [2000] FCA 1455 , Freeman v National Australia Bank Limited [2003] FCAFC 200.


case_title: Guss v Johnstone [2000] FCA 1455


case_title: Freeman v National Australia Bank Limited [2003] FCAFC 200


case_outcome: considered

case_text: The chronology of events relevant to the present proceedings is: 29 July 2005 - decision of New South Wales Local Court adverse to the appellant handed down giving rise to judgment debt in favour of the respondent; 24 February 2006 - appeal from judgment of Local Court dismissed by Malpass AJ in Murdaca v Accounts Control Management Services Pty Ltd [2006] NSWSC 68 ; 6 and 23 July 2006 respectively - bankruptcy notice issued and served by the respondent; 2 August 2006 - appellant obtains ex parte stay on enforcement of judgment of Local Court granted to the appellant pending hearing of respondent's objection to the instalment order; 15 August 2006 - application to set aside the bankruptcy notice dismissed on the last date for compliance with the notice; 22 August 2006 - creditor's petition filed in Federal Magistrates Court; 7 September 2006 - Local Court ordered that the judgment debt be paid by weekly instalments commencing 1 October 2006; 29 September 2006 - sequestration order made; 9 October 2006 - the appellant's application to review the sequestration order filed in the Federal Magistrates Court; 16 or 17 October 2006 - appellant attempted to make instalment payments to the trustees; trustees refused to accept the payment; 24 October 2006 - stay of sequestration order granted on condition that the appellant lodges a completed Statement of Affairs; 26 October 2006 - statement of affairs completed; 9 November 2006 - Federal Magistrates Court dismisses application to set aside sequestration order; 17 November 2006 - notice of appeal from Federal Magistrate's decision filed in Federal Court of Australia. 3 The appellant's grounds of appeal can be summarised briefly. First, he claims that the Federal Magistrate erred by failing to go behind the judgment of the Local Court to determine if there was a debt owed to the respondent. Second, he claims that his Honour's discretion to make the sequestration order miscarried in that, in assessing the appellant's solvency, his Honour made errors of fact, took into account irrelevant matters and failed to give sufficient weight to other matters. 4 At the hearing of this appeal I refused the appellant's application to adduce evidence that was not put before the Federal Magistrate for the following reason. 5 Section 27 of the Federal Court of Australia Act deals with the Court's reception of evidence on appeal: 27. In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence... 15 It appears that there were some irregularities or discrepancies in the documentation of the debt and the assignment, but although the assignment was pleaded in the Local Court, the appellant did not take issue with that plea in his defence in the Local Court. Instead, while not admitting that there had been a default under the loan agreement with Avco, the appellant's defence was that the agreement with Avco had been fully satisfied by Avco taking possesson of the motor car. In his judgment in the Supreme Court appeal, Malpass AJ noted at [16]-[19]: The plaintiff conducted his case before the Local Court on the basis that there was no issue concerning the assignment. At the commencement of her judgment, the Magistrate made a finding that the interests, rights and entitlements under the agreement for loan had been assigned. In my view, she did not fall into error in making that finding. The plaintiff now complains that there was no evidence of the assignment before the court and that there was no evidence of service of notice of the assignment. The defendant disputes that contention. It looks to admissions, the documentary material that was before the court and to evidence given by the plaintiff during his cross-examination. ... ... There is a contest between the parties as to what inferences may be drawn from all of the material. It is unnecessary to enter into that debate. It suffices to say that the material leads to the conclusion that the plaintiff was aware of the assignment and was not concerned to make any challenge in relation to it. Leaving that consideration aside, it seems to me that it was unnecessary to tender the assignment, or any notice of it, in the light of the admissions that arise from the pleadings and the manner in which the plaintiff conducted his case in the Local Court. His Honour concluded: It would seem from the record of the proceedings that neither the parties nor the court noticed the discrepancies in the purported notice. No doubt, this was because the assignment and notice thereof were not seen as matters in issue. 16 This last comment may be a little confusing. The assignment of a debt is not complete in law until notice has been given to the debtor in this case the appellant; s 12 Conveyancing Act 1919 (NSW). Irrespective of the technicalities however, the point remains that the appellant did not raise the issue in the Local Court. It was raised in the Supreme Court where the appellant submitted that there was no evidence of the assignment before the Local Court. This is not surprising. As the appellant did not traverse the plea of assignment no evidence was required and no adverse inference can be drawn from its absence. 17 Malpass AJ considered whether the appellant should be bound by the course he adopted at the trial or should be allowed to raise a new point on appeal. His Honour concluded at [30]- [33]: In my view, the plaintiff [appellant] should be bound by the course adopted during the hearing before the Local Court. It is conceded that it is a case where, had the matters been placed in issue, the defendant may have led evidence which had the possibility of defeating the point. Further, in the circumstances of this case, I do not consider it to be either expedient, or in the interests of justice, to entertain the new point in this appeal. The purport of the appeal is to have the proceedings remitted back to the Local Court so that the case can be reheard. This would seem to be a pointless exercise. From what has been said from the bar table, it appears that the defendant may be in a position to prove all issues concerning the assignment and the plaintiff is faced with an insurmountable jurisdictional problem. It may further be observed that what is in dispute has been described as not being a significant sum. There has already been an arbitration, a purported re-hearing and an appeal. Neither the parties nor the public interest would be well served by a further hearing. I should add that changing times have seen the court adjusting the approach to be taken to cases where parties appear in person. No longer is it a rare event. It is now approaching an event of almost daily occurrence. Many are litigants in person because they choose so to be. Many have become experienced litigants running numerous cases before the court. The transcript of the Local Court proceedings presents a picture of this plaintiff conducting himself with skill. 18 The 'insurmountable jurisdictional problem' to which his Honour referred was apparently a consequence of the claim being for less than $10,000. As his Honour explained earlier in his judgment, given the amount of the claim the appellant was not entitled to a rehearing after he was unsuccessful in the arbitration; see ss 3 , 43 (2) Civil Procedure Act 2005 (NSW), s 4 Local Courts Act 1982 (NSW). His Honour commented that the jurisdictional issue had been overlooked but that if the proceedings were remitted to the Local Court, the respondent intended to agitate the issue before that court. 20 Although the validity of the assignment was never directly challenged in the Federal Magistrates Court, in asserting that his Honour should have considered the question, Ms Goodchild relied on the fact that the judgment of the Local Court and the judgment of Malpass AJ on appeal were before him and should have alerted him to consider the validity of the assignment. In my view the fact that the judgments were before his Honour is a long way short of what would be required for this submission to be accepted. There was no obligation on the Federal Magistrate to reconsider every issue that had been raised (and settled) in the past. From his Honour's point of view there was no reason to doubt that the issue, although the subject of contest in the past, was now accepted as having been resolved. 21 I also do not accept that it would be appropriate for this Court to allow the appellant to reopen that issue either in this Court or before the Local Court. Since the arbitration, purported re-hearing and appeal to which Malpass AJ referred, an application to set aside the bankruptcy notice has been dismissed by a registrar of this Court, a sequestration order has been made by a registrar of this Court, there has been an unsuccessful application to set aside the sequestration order in the Federal Magistrates Court and now an appeal to this Court. There are even greater reasons now to say, as did Malpass AJ, that it is not in the interests of the parties or the public for there to be a further hearing.


case_title: Simon v Vincent J. O'Gorman Pty Ltd (1979) 41 FLR 95


case_title: Totev v Sfar (2006) 230 ALR 236


case_title: Udovenko v Mitchell (1997) 79 FCR 418


case_text: Where a petitioning creditor relies on a judgment debt the Court must be satisfied as to the validity of the debt and, to that extent, it may be said that the judgment 'is never conclusive in bankruptcy'; Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224. It is accepted however, that the Court will not investigate validity as a matter of course; Simon v Vincent J. O'Gorman Pty Ltd (1979) 41 FLR 95 at 111, Commonwealth Bank of Australia v Jeans [2005] FCA 978. There must be something to suggest that no real debt lay behind the judgment, whether because of fraud, collusion or miscarriage of justice; Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 357; Udovenko v Mitchell (1997) 79 FCR 418 at 421. 19 In the proceedings in the Federal Magistrates Court it is clear that the question whether the Federal Magistrate should go behind the judgment of the Local Court was raised but not in the context of any challenge to the assignment. His Honour's comments indicate that the issue was considered in the context of whether the Local Court judgment was final: To the extent that it may have been argued during the course of the proceeding, it is not appropriate in this instance for this court to go behind the judgment of the local court relied upon in the bankruptcy notice which in turn then triggered the creditors petition. The power of the court to go behind the bankruptcy notice is referred as being a matter of course for discretion. His Honour referred to Wren v Mahony at 225 and continued: Lest there be any doubt in the present case, applying the relevant principles to the circumstances set out in the affidavit material relied upon by the debtor it is my concluded view that there is no basis in that law for this court going behind the judgment. I am satisfied for reasons given, that the judgment relief [sic] upon in the bankruptcy notice can properly be characterised as a final judgment albeit that it does not include reference to costs yet to be assessed.


case_text: As stated by the Full Court in HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 at [44] : It is clear, both having regard to the modern principles of interpretation as enunciated by the High Court in cases such as CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 and s 15AA of the Acts Interpretation Act 1901 (Cth) that the Court will prefer an interpretation of a statute which would give effect to the legislative purpose, as opposed to one that would not. This requires the Court to identify that purpose, both by reference to the language of the statute itself and also any extrinsic material which the Court is authorised to take into account.


case_outcome: distinguished

case_text: The first instance decision in Sterling Guardian Pty Limited v Federal Commissioner of Taxation [2005] FCA 1166 per Stone J, and the Full Court decision in Sterling Guardian Pty Ltd v Commissioner of Taxation [2006] FCAFC 12 ; (2006) 149 FCR 255, did not directly consider the operation of the provisions before me, and the purchase of the land there was completed before 1 July 2000, although the relevant stratum units were not registered under the relevant legislation until 2 March 2002. The focus of the Court's attention in that case was upon the operation of s 75-5(2) of the GST Act. 38 The applicant also relied upon some observations of Stone J in Sterling [2005] FCA 1166. In the course of her judgment, her Honour made the following comments: Although it is common to speak of the "stratum units" or "home units" being sold, technically it is the fee simple estate in the relevant stratum unit, being the lot(s) and common property, that is the subject matter of the sale. The fee simple is a proprietary interest in land and, as with all interests (as opposed to the subject of those interests), it is intangible. The point is made in the following extract from an essay by K Gray and SF Gray, "The Idea of Property in Law" in Land Law: Themes and Perspectives , Bright and Dewar eds, 1998 at p 15: '[T]he beginning of truth about property is the realization that property is not a thing but rather a relationship which one has with a thing. It is infinitely more accurate, therefore, to say that one has property in a thing than to declare that the thing is one's property. To claim property in a resource is, in effect, to assert a strategically important degree of control over that resource; and to conflate or confuse this relationship of control with the actual thing controlled may often prove to be an analytical error of some substance.' The attraction of the identity submission diminishes somewhat when its implications are considered. If that approach is correct, s 75-5(2) does not apply in this case because the taxable supplies acquired for the purpose of building the home units were of property that is not identical to the stratum units that were sold. It follows that the margin scheme could apply to any such development, even if the land subject to the development was acquired pursuant to a taxable supply. In other words, on the applicant's approach, a developer could buy the land, the construction materials and everything else required for the building of home units pursuant to a taxable supply and still pay GST only on the margin which, in general terms, is the difference between the costs and the sale price. It would be irrelevant whether the land was acquired before or after the commencement of the GST Act. That would not be the case, however, for a developer who bought individual lots for development as individual residences rather than for strata development. ... The respondent submitted that the GST Act is not concerned with whether property in land is a matter of physical fact or abstract right but rather with supplies as business transactions "made in the course or furtherance of an enterprise that you carry on"; s 9-5. According to the respondent, the GST Act proceeds "on the basis that a supply of real property is a supply of tangible asset" not the disposal of an intangible interest or bundle of rights. Putting the matter another way, one can say that the applicant acquired the Camperdown land (technically the fee simple estate in the land) prior to the GST Act commencing and disposed of it after subdivision by registration of the Strata Plan and construction of the home units. The disposition was piecemeal as each stratum unit was sold but ultimately the whole of the land (or the entire interest) that was acquired was sold. The reference in s 75-15 (see [12] above) to the stratum unit supplied being a supply of "part of the land" acquired supports this practical analysis rather than a technical legal analysis. Had the latter approach been intended one might expect the section to refer to the part as being less than the whole of the interest in the land rather than to the land itself. This practical approach is consistent with the approach taken by Mason J in Moruben Gardens Pty Limited v Federal Commissioner of Taxation (1972) 46 ALJR 559 at 562. The respondent's approach is also supported by the role of the margin scheme and the context in which it operates as described above ... . The explanation given in the EM ... makes it abundantly clear not only that GST is only payable on value added after the GST Act commenced on 1 July 2000 but also that the cost of improvements to the property made since that date could not be taken into account when calculating the original purchase price. The EM ignores the fact that improvements may not only have added to the value of the real property but become, in law, part of the real property. It is not the juridical nature of the improvements that is critical but the fact that they have been brought about pursuant to a taxable supply. The clear thrust of the GST Act, both in its wording and as explained in the EM, is that of a practical business tax imposed with respect to elements of commerce. As Senior Counsel for the respondent pointed out, although in economic terms the burden of the GST is borne by the ultimate consumer, in terms of "imposition, collection and administration" it is a tax on business. It is for the taxpayer to prepare business activity statements and pay the appropriate GST and in this context abstract propositions about interests in land and the acquisition of a brand new set of rights arising from registration of a strata plan are irrelevant. ... [T]he applicant's submissions are not consistent with this purpose. For these reasons I do not accept the applicant's identity submission. In my view, it therefore follows that unless the margin on which the GST is payable is to be calculated without reference to the non-land costs the application of the margin scheme would be precluded by s 75-5(2) of the GST Act. 39 The reference to the 'identity submission' was a similar submission to the one addressed above, but her Honour was not specifically dealing with the operation of s 75-10(3) or s 75-10(2), but s 75-5(2) of the GST Act. Her Honour did not consider the specific wording of s 75-10(3) or s 75-10(2), or the factual scenario before me. In my view, the comments of Stone J do not lead in this proceeding to the applicant's construction of s 75-10(3) being accepted. 40 Whilst my above conclusion as to the proper interpretation to be given to s 75-10(3) disposes of this proceeding in favour of the respondent, it is appropriate to make some further observations on submissions made by the parties in respect of this first issue.


case_text: The first instance decision in Sterling Guardian Pty Limited v Federal Commissioner of Taxation [2005] FCA 1166 per Stone J, and the Full Court decision in Sterling Guardian Pty Ltd v Commissioner of Taxation [2006] FCAFC 12 ; (2006) 149 FCR 255, did not directly consider the operation of the provisions before me, and the purchase of the land there was completed before 1 July 2000, although the relevant stratum units were not registered under the relevant legislation until 2 March 2002. The focus of the Court's attention in that case was upon the operation of s 75-5(2) of the GST Act. 27 However, before me the respondent contended as follows: In the present case the stratum units that were sold by way of the Supply Contracts did not exist at 1 July 2000, those legal interests only came into existence on the registration of a plan of subdivision after 1 July 2000. Accordingly, it could be contended that s 75-10(3) has no application to the present circumstances as the stratum units could not have been acquired (within the meaning of Item 1 in the table) or held (within the meaning of Item 3 in the table) as at 1 July 2000 as they did not exist at that time. However, it is the Respondent's position that the references in s 75-10(3) to an "interest, unit or lease" should be interpreted in accordance with the principles set out by the Federal Court at first instance in Sterling Guardian Pty Ltd v Commissioner of Taxation [2005] FCA, at [23-40] in relation to Section 75-10(2). In that case, Stone J held that, where the property was subdivided after the purchase, the acquisition cost of each unit for the purposes of s 75-10(2) was the cost of the corresponding portion of the "parent" title and it was irrelevant that the individual stratum units did not exist at the time of acquisition. Applying these principles to the present case the Respondent contends that the stratum unit is only acquired or held on 1 July 2000, if the parent freehold title was acquired or held on that date and it is not to the point that the stratum unit interests did not exist at that time. This approach appears to have been implicitly assumed by the Applicant in its submissions. 28 My view is that the initial contention posited by the respondent is correct. Whilst the respondent sought to take a different position, I must construe the provisions as I consider they are to be properly understood as a matter of law. The failure of one party to adopt a particular interpretation cannot prevent a court from adopting that interpretation if the court considers the interpretation is correct: see generally Pearce DC and Geddes RS, ' Statutory Interpretation in Australia ' (6 th ed, LexisNexis, 2006) at [1.5]. 29 The property (in the juridical sense) that was sold by way of the Supply Contracts was not the same property that was acquired or held (no matter what meaning is given to those terms). Accordingly, s 75-10(3) does not apply; the applicant did not on any view acquire or hold before 1 July 2000 the Stratum Unit which it sold, and the requirements specified in the second column of the table were therefore not met. This, in my view, is the correct way to interpret and apply s 75-10(3) and the table. 32 The margin scheme was introduced to obviate unfairness on some forms of business activity see Sterling 149 FCR at [16]. However, I cannot ignore the text of the GST Act, particularly here Div 75, and the clear wording of the operation of the provisions under consideration before me. Further, the interpretation I favour does give effect to the legislative purpose of obviating unfairness, but as confined by the words of the provisions themselves. 33 Whilst the Explanatory Memorandum to the relevant legislation talks in general terms, nowhere can the applicant demonstrate that the Explanatory Memorandum addresses the first issue before the Court. The appropriate way to consider the ambit of s 75-10(3) is to look to the text itself, keeping in mind the ordinary principles of statutory construction. 34 In my view, the table in s 75-10(3), when referring to (relevantly here) the unit acquired, refers to the corresponding 'juridical concept or intangible legal interests' referred to in s 75-5(1), namely the 'stratum unit': see Sterling 149 FCR at [21] (per Heerey, Dowsett and Conti JJ). The table specifically refers to 'the' unit. This is consistent with the approach in s 75-10(2) the margin is normally to be calculated by the comparison of the consideration for supply and acquisition in respect of the unit 'in question'. The margin scheme envisages the comparison between the same units and, for that matter, between the same interests or leases. One would readily expect this to occur so that the calculation of the margin can be determined, putting aside the identification of a date, on the basis of the acquisition and supply of the same unit, interest or lease. 35 Therefore, the margin scheme can only apply to the same property (in the juridical sense) being acquired and subsequently sold. The specific wording of s 75-10(3), of the table in s 75-10(3) and of s 75-5(2), and then the specific reference back in these provisions to the supply of the stratum unit in s 75-5(1) supports this view. 36 The applicant, in an attempt to refute the approach that the acquired property should be identical to the supplied or sold property, referred to s 75-15, which provides: Subdivided land For the purposes of section 75-10, if the freehold interest, stratum unit or long-term lease you supply relates only to part of land or premises that you acquired, the consideration for your acquisition of that part is the corresponding proportion of the consideration for the land or premises that you acquired.


case_text: Neither counsel's argument really addressed the substantive merits of an appeal against Sundberg J's judgment, apart from Mr Rebikoff noting the bare fact that Judge Conlon reached the same choice of law conclusion as Sundberg J. Implicit in Mr Rebikoff's case was the contention that because of the lack of "substantial injustice" to the applicant, supposing Sundberg J to be wrong (see Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398), there was no need to go to the other limb of the Décor test and show that his Honour's order was "attended with sufficient doubt to warrant it being considered by the Full Court". The lack of substantial injustice was so clear that the application could, and should, be disposed of by a single judge on that ground alone. 11 In theory one can envisage cases where the presence or absence of either substantial injustice or sufficient doubt is so clear and obvious that the application should be disposed of on that ground alone. Such circumstance may in itself point against any departure from the presumption in the Rules that the application be heard before a single judge. The present case is not such a one. As already mentioned, there is, arguably at least, the possibility of substantial injustice being suffered by the applicant. 12 As to sufficient doubt, the point, as I have said, has not been addressed in detail. All I can say is that his Honour's reserved judgment of 81 paragraphs carefully reviews the evidence and authorities. The question for me is not whether it is attended by doubt, sufficient or otherwise, but whether the application should be heard by a Full Court. Sundberg J's judgment deals with substantial legal issues which are appropriate for resolution by a Full Court.