Date: 19980826
Docket: T-1261-98
ADMIRALTY ACTION IN REM
BETWEEN:
ANNACIS AUTO TERMINALS (1997) LTD.,
Plaintiff,
- and -
THE OWNERS AND ALL OTHERS
INTERESTED IN THE SHIP "CALI",
Defendants.
REASONS FOR ORDER
JOHN. A. HARGRAVE,
PROTHONOTARY
[1] By motion in writing of 14 August 1998, the Plaintiff, Annacis Auto Terminals (1997) Ltd. ("Annacis Auto") wishes a reconsideration, or in the alternative, a correction of perceived clerical mistakes, errors or omissions, as provided for in Rule 397, of my Order of 5 August, 1998. In that no reasons accompanied that Order the reconsideration is as to any matter which has been overlooked or accidentally omitted, or alternatively, as to clerical mistakes, errors or omissions.
[2] The Order of 5 August, 1998, among other things, gave the owners of the "Cali" until 31 October 1998 to complete a private sale of the Ship, failing which and subject to any further order, the Ship would then be sold by the Court, the terms of the sale being set out in an unsigned Sale Order and a Commission appended to the 5 August Order.
[3] At the hearing of the motion my initial view was to let the parties have several months to try to work out sale terms for the Court ordered sale, based on draft material provided by counsel for Annacis Auto. There was some resistance to this view and I perhaps doubt whether the various parties could come to an agreement as to the sale terms. I therefore indicated to counsel that if they were able to work out sale terms within the next several days the Ship would be sold on those agreed terms, failing which the Court would set out the sale terms as a scheduled Order and Commission, which would be signed at an appropriate time. I took that approach, setting out the terms in an unsigned Order and Commission, in order to save a number of counsel the cost, in time and money, of coming to court again to settle sale terms. However I did, specifically, leave it open that the terms be subject to any further order of the Court, to take into account any special circumstances or change in circumstances which might reasonably dictate either an extension of time within which the owners might sell or some necessary change in the form of the Sale Order or the Commission.
[4] Counsel for Annacis Auto is of the view that the 5 August 1998 Order ought to have made provision for the naming of the sheriff in the unsigned Sale Order and in the unsigned Commission of Appraisal and Sale. Counsel also submits that there ought to have been a provision, in the 5 August Order, by which the office address of the sheriff, once named, is to be added in to the Sale Order as an address where the sheriff will receive bids. Indeed, the draft Order for sale, prepared by counsel for Annacis Auto and appended to his 22 July 1998 motion, names an individual, a court bailiff appointed by the Attorney General of British Columbia, as the Sheriff. It also sets out the Sheriff's address, care of one of the commercial bailiff services authorized by the Attorney General to act as sheriffs and provides dates for the receipt of bids, for the opening of bids and for the submission of claims by in rem creditors and mortgagee holders.
[5] It was through no oversight that the Sheriff's name and address and the dates for submissions of bids and claims and for the opening of bids were omitted. It would be inappropriate, at this time, to cast such particulars in stone. The named Sheriff might, for any number of reasons, be unwilling or unable to act when the time came to initiate the court ordered sale. Circumstances might, by November, render unworkable any specific time frame set now. There is no reason why such particulars should be determined now and good reason why they ought not to be settled at this time. The sheriff's name and address, as well as dates for receipt of bids and claims and the opening of bids, are matters which are premature.
[6] Should the "Cali" not be sold privately within the time allowed by the Court, or any extension granted for good reason and the parties not be able to agree on which bailiff has jurisdiction and which individual ought to be named as sheriff, the Court will arbitrarily insert the name and address of the bailiff who is to act as sheriff. The Court will also, by informal consultation with the sheriff, the sheriff's ship broker, the parties and those otherwise interested in the Ship determine a reasonable schedule given the then relevant circumstances, including the state of the market for a ship such as the "Cali".
[7] Counsel for Annacis Auto seeks costs, in lump sum, against both owners and the mortgagee holder, International Trust & Finance Corporation, payable forthwith. However Annacis Auto has not succeeded on its motion for reconsideration.
[8] Counsel for the owner and counsel for the mortgagee holder both take the position that the present application is unnecessary and premature. Counsel for the mortgagee feels that it and the owner ought to have their costs of the motion payable forthwith. Counsel for the owner merely submits that costs should be awarded against the Plaintiff.
[9] The Court is allowed to order costs payable forthwith when, pursuant to Rule 401(2), the Court is satisfied a motion should not have been brought. This motion is borderline as one which perhaps ought not to have been brought and indeed opposing counsel did take that position in correspondence leading up to the motion. However in the present instance I will give the benefit of the doubt to Annacis Auto as to payment forthwith. The Defendant owner and the mortgagee will each have costs in any event, payable by Annacis Auto, following the sale of the Ship.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
26 August 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1261-98
STYLE OF CAUSE: Annacis Auto Terminals (1997) Ltd.
v.
The Owners and All Others Interested in the Ship "Cali"
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF MR. JOHN HARGRAVE, PROTHONOTARY
dated August 26, 1998
SOLICITORS OF RECORD:
| Mr. John Bromley on behalf of International Trust & Finance Corp. |
Bromley, Chapelski
| Ms. Loreen Carroll on behalf of Rivtow Marine and RVC Holdings Ltd. |
Credit Analyst, Rivtow Marine
| Mr. Doug Morrison on behalf of the Defendants |
Bull, Housser & Tupper
| Mr. Glenn Morgan on behalf of the Plaintiff |
Davis & Co.