W K Marble & Granite Pty Limited v CASA China Limited [2007] FCA 1382

W K Marble & Granite Pty Limited v CASA China Limited [2007] FCA 1382

In the circumstances, leave to discontinue against Bowport is granted. Plaintiffs are to pay Bowport's party-party costs from and including 28 February 2007, reflecting the point at which their case became unsustainable. Each side to bear its own costs of the argument on costs, taking into account the parties’ conduct, settlement negotiations, and the failures of both sides to settle commercially when close in negotiations. Indemnity costs are not warranted.

Parties
First Plaintiff: W K Marble & Granite Pty Limited; Second Plaintiff: YUNFU MINGSHICHENG STONE CO LIMITED; First Defendant: CASA CHINA LIMITED; Second Defendant: GUANGDONG ZHAOGUING HARBOR SHIPPING GROUP CO LTD; Third Defendant: MEDITERRANEAN SHIPPING COMPANY (HK) LIMITED; Fourth Defendant: MSC MEDITERRANEAN SHIPPING COMPANY SA; Fifth Defendant: WOODLEY MARITIME CORP; Sixth Defendant: TRANSTAR FORWARDING INTERNATIONAL PTY LIMITED; Seventh Defendant: BOWPORT ALL ROADS TRANSPORT PTY LIMITED
Jurisdiction
Australia
Judgment Date
31 August 2007
Procedural Posture
Admiralty and Maritime Small Cargo Claim / Post Settlement, Discontinuance and Costs Ruling
Outcome
Leave to discontinue granted; costs ordered against plaintiffs from specified date; parties to bear their own costs of the costs argument.
Legal Topics
Discontinuance of Proceedings, Costs, Carriage of Goods by Sea, Burden of Proof
Admiralty Maritime Law Civil Procedure Discontinuance of Proceedings Costs Carriage of Goods by Sea Burden of Proof

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Parties

W K Marble & Granite Pty Limited

First Plaintiff

YUNFU MINGSHICHENG STONE CO LIMITED

Second Plaintiff

CASA CHINA LIMITED

First Defendant

GUANGDONG ZHAOGUING HARBOR SHIPPING GROUP CO LTD

Second Defendant

MEDITERRANEAN SHIPPING COMPANY (HK) LIMITED

Third Defendant

MSC MEDITERRANEAN SHIPPING COMPANY SA

Fourth Defendant

WOODLEY MARITIME CORP

Fifth Defendant

TRANSTAR FORWARDING INTERNATIONAL PTY LIMITED

Sixth Defendant

BOWPORT ALL ROADS TRANSPORT PTY LIMITED

Seventh Defendant

Procedural Posture

Admiralty and Maritime Small Cargo Claim / Post Settlement, Discontinuance and Costs Ruling

Legal Issues

  1. 1 Whether leave should be granted for plaintiffs to discontinue against Bowport All Roads Transport Pty Ltd
  2. 2 How costs should be ordered following discontinuance in a small admiralty claim

Ratio Decidendi

In the circumstances, leave to discontinue against Bowport is granted. Plaintiffs are to pay Bowport's party-party costs from and including 28 February 2007, reflecting the point at which their case became unsustainable. Each side to bear its own costs of the argument on costs, taking into account the parties’ conduct, settlement negotiations, and the failures of both sides to settle commercially when close in negotiations. Indemnity costs are not warranted.

Court Disposition

Leave to discontinue granted; costs ordered against plaintiffs from specified date; parties to bear their own costs of the costs argument.

Orders

  • Leave to discontinue against the seventh defendant (Bowport) granted if necessary.
  • Plaintiffs to pay the costs of the seventh defendant on a party-party basis from and including 28 February 2007.