Balaji Cranes Ltd v Lampson (Australia) Pty Ltd

[2008] FCA 882

FEDERAL COURT OF AUSTRALIA

Balaji Cranes Ltd v Lampson (Australia) Pty Ltd
[2008] FCA 882

BALAJI CRANES LIMITED v LAMPSON (AUSTRALIA) PTY LIMITED
(ACN 003 919 051)

NSD 5 OF 2008

RARES J
18 APRIL 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 5 OF 2008

BETWEEN:	BALAJI CRANES LIMITED Applicant
AND:	LAMPSON (AUSTRALIA) PTY LIMITED (ACN 003 919 051) Respondent

JUDGE:	RARES J
DATE OF ORDER:	18 APRIL 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceedings be dismissed, with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 5 OF 2008

BETWEEN:	BALAJI CRANES LIMITED Applicant
AND:	LAMPSON (AUSTRALIA) PTY LIMITED (ACN 003 919 051) Respondent

JUDGE:	RARES J
DATE:	18 APRIL 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. On 29 February 2008, I ordered that the applicant, Balaji Cranes Limited, file and serve its up-to-date financial statements on or before 14 March 2008, and particulars of its damages, together with any evidence on which it proposed to rely in answer to the motion for security for costs, on or before 28 March 2008.  Balaji has not filed any up-to-date financial statements or particulars of damages, whether or not it intended to file any material in answer to the motion for security. 

2. On 31 March 2008, the solicitor for the respondent, Lampson (Australia) Pty Limited, wrote to the solicitor for Balaji noting that no particulars of damage or evidence in answer to the motion for security for costs had been received by 28 March.  He also sent a reminder letter on 8 April 2008 repeating that observation and asking for an urgent response.  In the correspondence, no complaint was made about a failure to supply up-to-date financial statements.  The court file contains no material filed by Balaji since 29 February 2008. 

3. I infer that, at the very least, Balaji has not filed or served any particulars of damages as at today, and therefore is in default of compliance with order 4 made on 29 February 2008.

4. Pursuant to O 35A r 2(1)(a), an applicant is in default if it fails to comply with an order of the Court in the proceedings.  Under O 35A r 2(1)(f), it is also in default if it fails to prosecute the proceedings with due diligence. 

5. When the matter was called today, there was no appearance by Balaji.  The motion on which Lampson moves to seek an order under O 35A r 3(1)(a) for judgment was filed electronically and served on Balaji’s solicitors today at 10.15am with a return date.  Mr Efron, who is the solicitor on the record for Balaji, made a telephone call to my chambers earlier this morning when I was already in court and informed my executive assistant that he had not been able to get instructions from his client, or any money, and was not in a position to appear today.  Mr Underwood, who appears with Ms Nolan, for Lampson, has informed me that there was discussion between his instructing solicitor and Mr Efron to do with the proceedings today. 

6. It is clear that Balaji is aware of today’s hearing.  I am satisfied that Balaji was served on 11 April 2008 with the notice of motion filed on 11 April 2008, and Mr Cockburn’s affidavit sworn on the same date.  I accept the evidence of service in Mr Cockburn’s affidavit of 16 April 2008.  I will grant leave to file that affidavit in court, and note that it has been read.

7. In those circumstances, I am of opinion that Balaji is in default because it has both failed to comply with Order 4 made on 29 February 2008, with respect to the provision of particulars of its damages by 28 March 2008, and that it is not prosecuting the proceedings with due diligence.  It is appropriate to dismiss the proceedings.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:       12 June 2008

Counsel for the Applicant:	No appearance
Solicitor for the Applicant:	Efron & Associates
Counsel for the Respondent:	GE Underwood and B Nolan
Solicitor for the Respondent:	Hewitts Commercial Lawyers

Date of Hearing:	18 April 2008
Date of Judgment:	18 April 2008