Noor Maritime Ltd v. Calandra Shipping Co Ltd

Civil procedure — admiralty proceedings — application of guidelines for imposing condition requiring payment into court — costs

P’s vessel, The Rainbow, sank with cargo fuel and effects on board but no loss of life after colliding with D’s vessel, The Calandra, which was on a ballast voyage and was damaged but later repaired. One of the resulting sets of proceedings was an action in which P claimed in personam against D which cross-claimed against it in personam. The Master ordered that P file a defence to the cross-claim by a certain date, failing which it would be barred from doing so. After that date, P issued a summons for an extension of time to file a defence to the cross-claim. Such an extension was granted, but the Master granted it on the condition that P paid USD700,000 into court. P appealed to a judge in chambers against the imposition of the condition.

Held, allowing the appeal to set aside the condition and ordering that P be barred from filing a defence to the cross-claim unless it did so by 4 pm on 16 April 2018 and that P bear the costs of the appeal, that:

  • The guidelines as to the imposition of a condition requiring payment into court were those set out in Schenker International (HK) Ltd v. Natural Dairy (NZ) Holdings Ltd [2014] 1 HKLRD 274 applied). (See para. 21.)
  • Applying those guidelines, the imposition of the condition was disproportionate to a single breach. It had the effect of preventing a just resolution of the dispute in accordance with the substantive rights of the parties. (See para. 44.)
  • Since P was being given more time, it should bear the costs of the appeal summarily assessed and allowed at HKD100,000. (See paras. 55–56.)

Appeal

This was an appeal by the plaintiff against an order by a Master requiring a payment into court as a condition of granting an extension of time for filing a defence to a cross-claim by the defendant. The facts are set out in the judgment.

Jurisdictions: 

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK (www.sweetandmaxwell.com.hk / www.westlaw.com.hk).