Burrows v The Ship 'Merlion'

1. The first defendant file a defence in the proceedings by 4.00pm on 3 May 2024.
2. If Order 1 is not complied with, judgment be entered for the plaintiff in the terms of the declaration sought at paragraph 90(ii) of the Amended Statement of Claim, filed on 6 December 2023, pursuant to rule 5.23(2)(e) of the Federal Court Rules 2011 (Cth).
3. A copy of these Orders be served on the first defendant forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SARAH C DERRINGTON J 1 Pursuant to an interlocutory application filed on 22 March 2024, the plaintiff, Mr Terence Roy Burrows, seeks an order pursuant to r 5.23(2)(d) of the Federal Court Rules 2011 (Cth) for judgment in default of appearance in relation to the prayer for relief in paragraph 90(ii) of his Amended Statement of Claim (ASOC) filed on 6 December 2023. Paragraph 90(ii) seeks a declaration that Mr Burrows has been the sole legal and beneficial owner of the ship, The Merlion, since December 2022. Alternatively, Mr Burrows seeks an order pursuant to r 5.23(2)(e) of the Rules that judgment for Mr Burrows in the terms of paragraph 90(ii) is to take effect if the first defendant, Mr Glenn Thurlow, does not file an appearance in accordance with Form 9 of the Admiralty Rules 1988 (Cth) within 7 days. 2 Mr Burrows' application is supported by an affidavit of his solicitor, Mr Benjamin Noel Sewell, filed 22 March 2024 (Sewell Affidavit). 3 By writ filed 13 October 2023, Mr Burrows purported to commence proceedings in rem against The Merlion. The writ named Mr Thurlow as a "relevant person" within the meaning of s 3 of the Admiralty Act 1988 (Cth). On 23 October 2023, The Merlion was arrested by the Admiralty Marshal of the Federal Court of Australia, pursuant to an arrest warrant taken out by Mr Burrows on 13 October 2023, in support of his claims for the following relief: (a) a declaration that he is the sole beneficial owner of The Merlion; (b) an injunction requiring Mr Thurlow to give possession of, or alternatively transfer title to, The Merlion pursuant to s 232 of the Australian Consumer Law (ACL) (schedule 2 to the Competition and Consumer Act 2010 (Cth)) or the Federal Court of Australia Act 1976 (Cth) (FCA Act); and (c) damages for conversion, in detinue, and under the ACL. 4 Mr Thurlow filed a conditional appearance on 3 November 2023. By interlocutory application filed on 28 November 2023, he sought, inter alia, to contest the in rem nature of the claims brought against The Merlion, thereby challenging the Admiralty jurisdiction of this Court in relation to the causes of action said to ground the prayer for relief. Five substantive causes of action were pleaded in the ASOC: