CKP Fishing Company Ltd v Owners of Motor Vessel Woo Yang [1999] FJHC 176; HBG0001D.1998S (3 December 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
ADMIRALTY JURISDICTION

ACTION NO: HBG0001 OF 1998

BETWEEN:

CKP FISHING COMPANY LIMITED
Plaintiff

AND:

THE OWNERS OF MOTOR VESSEL WOO YANG
Defendant

AND:

MARINE PACIFIC LIMITED
1st Intervener

AND:

SHIPBUILDING (FIJI) LIMITED
2nd Intervener

COUNSEL: Mr V. Kapadia for Plaintiff
Mr W. Clarke for 2nd Intervener

Hearing: 3rd December 1999
Decision: 3rd December 1999

DECISION

This is an application by Shipbuilding Fiji Limited (the 2nd Intervener) for payment of its expenses in the berthing of the vessel “Woo Yang No. 205" out of the sum of $50,000 paid into Court on the sale of the vessel.

The vessel was arrested as a result of an application made by CKP Fishing Company Limited, the Plaintiff Company. The Plaintiff has made an application for the funds in Court pursuant to a judgment in default entered on 14th September 1999 in its favour in the sum of US$179,216.38. That application is still to be heard. The issue of the 2nd Intervener’s expenses was heard today. Full argument was heard, and judgment has been reserved.

However in the course of the hearing and on the basis of affidavits filed by Kim Sung Soo, Managing Director of the Plaintiff Company, Mr Kapadia asked for an order for the release of the vessel which is currently held at the Shipbuilding Fiji Limited wharf to the new owners - Pratidina Pratama.

The affidavit of Kim Sung Soo sworn on 3rd December 1999, states that he and his son are directors of a company called Marine Cold Storage Company Limited which is the agent for the new owners Pratidina Pratama.

When I asked Mr Kapadia in what way CKP Fishing Limited was affected by the claimed detention of the vessel, he said that it was Kim Sung Soo who was prejudiced in his capacity as Director of the agents of the new owners.

Mr W. Clarke for the 2nd Intervener opposed the application saying that the Plaintiff had no standing to ask for the release of the vessel and that the application was not properly before the Court.

It seems clear that Kim Sung Soo is making an application for a mandatory injunction for the release of the vessel.

CKP Fishing Limited is not making this application. Marine Cold Storage is not a party to this action.

The correct procedure to be followed is for Marine Cold Storage Company Limited to make an application for an injunction under the High Court Rules 1988. There is no need for the Court to exercise inherent jurisdiction when the High Court Rules have provided a specific procedure.

I therefore decline to make an order for the release of the vessel Woo Yang No. 205. Judgment on the issue of the berthing expenses will be delivered on January 20th 2000 at 11 a.m.

Nazhat Shameem
JUDGE

At Suva
3rd December 1999