According to various reports, the New South Wales Supreme Court
has overturned the decision of the New South Wales Consumer Trader
and Tenancy Tribunal ("Tribunal") in the
DV Kelly case (see our updates of 7 May 2010, 13 May 2010 and 25
October 2010). Many of you will recall that the decision of the
Tribunal had found that certain container detention fees charged by
the Australian agent of a shipping line were unenforceable as being
a penalty rather than damages due to the size of the amount
In our various updates and in subsequent discussions during
CBFCA Member Forums and in other seminars, we pointed out that one
of the potential limitations to the Tribunal decision was that it
seemed to be an unusual case to be determined by the Tribunal given
its limited jurisdiction. We advised that an appeal was pending to
the New South Wales Supreme Court and that one ground of appeal was
that the Tribunal did not have jurisdiction to hear the matter
(even though the representative of the agent for the shipping line
did not object to the Tribunal hearing the matter).
At this stage, the full decision of the New South Wales Supreme
Court has yet to be released which limits the information which can
be provided. However, the reports suggest that the New South Wales
Supreme Court decision was confined to overturning the Tribunal
decision on the basis that the Tribunal did not have jurisdiction
to hear the matter. The decision of the New South Wales Supreme
Court does not appear to have addressed the other substantive
issues raised during the hearing before the Tribunal. Accordingly,
those substantive issues remain alive (as they have done for some
time). Importantly those issues include the following:
Whether contractual provisions enable shipping lines or their
Australian agents to charge such detention fees in the first
Whether the quantum of charges being levied by shipping lines
or their Australian agents are reasonable and would be enforceable
as damages or whether they would be construed as penalties and be
Whether a shipping line or its Australian agent can invoke
liens as a means to enforce the amounts claimed to be owing.
Clearly, the decision of the New South Wales Supreme Court does
remove one of the few available recorded decisions which have found
that the amounts claimed by shipping companies or their Australian
agents are unenforceable. However, the decision of the New South
Wales Supreme Court does not address the other substantive issues
which still need to be considered on a "case by case"
basis. At the same time, the impending commencement of the Personal
Properties Securities legislation will have an impact on the
ability of parties to create and exercise liens and it will be of
interest to see how shipping companies and Australian agents change
practices to accommodate the requirements of the new
We will keep you informed of developments and will provide a
further detailed review of the decision of the New South Wales
Supreme Court once it has issued.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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