New South Wales Supreme Court overturns "container detention" decision

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 claimed.

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