FEDERAL COURT OF AUSTRALIA
A1 For Maintenance Pty Ltd v Lehal Pty Ltd [2017] FCA 1505
File number: WAD 162 of 2017 Judge: GILMOUR J Date of judgment: 22 December 2017 Catchwords: PRACTICE AND PROCEDURE – interlocutory application – self-executing or ‘springing’ orders – application for extension of time to comply with a self-executing order to file a List of Documents for discovery – held: application dismissed Legislation: Federal Court Act 1976 (Cth) ss 37M and 43
Federal Court Rules 2011 (Cth) pt 40
Cases cited: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Date of hearing: 13 November 2017 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 38 Counsel for the Applicant: Mr M Pirrie Solicitor for the Applicant: Frenkel Partners Solicitor for the First to Seventh Respondent: Mr A Prime of MDS Legal Counsel for the Eighth Respondent: The Eighth Respondent appeared in person ORDERS
WAD 162 of 2017 BETWEEN: A1 FOR MAINTENANCE PTY LTD
Applicant
AND: LEHAL PTY LTD ACN 113 002 109
First Respondent
RAVI INDER SINGH
Second RespondentMAJINDER SINGH (and others named in the Schedule)
Third Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
22 DECEMBER 2017
THE COURT ORDERS THAT:
1.The Eighth Respondent’s interlocutory application filed on 31 October 2017 for an extension of time to comply with the orders of the Court dated 13 September 2017 be dismissed.
2.The Eighth Respondent’s defence be struck out and judgment be entered for the Applicant against the Eighth Respondent for damages to be assessed.
3.Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GILMOUR J:
The Eighth Respondent, Mr Gurdit Singh, applies to extend the time for compliance with the order of the Court made on 13 September 2017 that he make, file and serve his list of documents by 4pm on 6 October 2017, failing which his defence be struck out and judgment be entered for the applicant, A1 for Maintenance Pty Ltd (A1), against him for damages to be assessed.
The application, which is opposed by A1, is supported by Mr Singh’s two affidavits sworn on 30 October and 12 November 2017 respectively.
Background
The proceedings were commenced by A1 on 4 April 2017. In its originating application, the applicant claims that the respondents are bound by and have contravened three franchise agreements for car wash businesses. The applicant seeks various declarations, injunctions and damages as relief.
Mr Singh is alleged by the applicant to have been directly or indirectly, knowingly concerned in, or party to the various unconscionable conduct and franchisee agreement breaches alleged against.
Mr Singh is the registered holder of the business name “Impeccable Hand Car Wash”, which name is the subject of certain of the applicant’s allegations of misconduct by the respondents.
A general order for discovery was…
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- Case
- [2017] FCA 1505
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether Mr Singh’s application for an extension of time to comply with the self-executing order should be granted. The court considered the principle that self-executing orders are meant to be enforced without further court intervention and Mr Singh's reasons for non-compliance, including his reference to an expired Microsoft Word license and lack of access to alternative computer facilities. The court also assessed whether Mr Singh's non-compliance was justified and whether the application was made promptly.
The court held that self-executing orders are to be enforced automatically, and any failure to comply should be addressed by the affected party without delay. Mr Singh's reasons for non-compliance were found to be inadequate, as they were not supported by sufficient evidence. The court noted that Mr Singh had access to alternative computer facilities and did not provide a satisfactory explanation for his failure to comply with the order. The application was made after the deadline for compliance had passed, and the court found that Mr Singh did not demonstrate any exceptional circumstances warranting an extension of time. Consequently, the application for an extension of time was dismissed, Mr Singh’s defence was struck out, and judgment was entered for the applicant for damages to be assessed. Costs were reserved.
Orders
Orders of the court
1. The Eighth Respondent’s interlocutory application filed on 31 October 2017 for an extension of time to comply with the orders of the Court dated 13 September 2017 be dismissed.
2. The Eighth Respondent’s defence be struck out and judgment be entered for the Applicant against the Eighth Respondent for damages to be assessed.
3. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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