Cawthorn, D.S. v Remy Australie P/L

[1994] FCA 929

0129 9+

JUDGMENT NO. -..--A -

FEDERAL COURT OF AUSTRALIA

NEW SOUTE WALES REGISTRY	No. NG 3194 of 1994
GENERAL DIVISION

DAVID SAXBY CAWTHORN

Applicant

REMY AUSTRALIE PTY LIMITED

Respondent

RECEIVED	RBl4Y AUSTRALIE PTY LIMITED
FEDERAL COURT OF	Cross-Claimant

MlmRMlA

PRINQPAL

RESMI D-

REQIBTRY

First Cross-respondent

DIN0 TONEGATO

Second Cross-respondent

CORAM:	SACKVILtE J.
PLACE :	SYDNEY
DATE:	25 NOVEMBER 1994

REAsONS FOR JUDGMENT

HIS HONOUR: In this case the cross-claimant proceeds by way of notice of motion against the second cross-respondent. The notice of motion seeks judgment in favour of the cross-claimant in the sum of $16,644.66. The basis of the application is that the second cross respondent has been in default in filing and serving a defence to the cross-claim. Reliance is placed on 0 11 r 23 of the Federal Court Rulea.

The cross claimant has read affidavits of service which

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demonstrate that the cross-claim was served on the second cross- respondent on 15 June 1994. The notice of motion, together with an affidavit of debt in support, was served on 9 November 1994. That notice of motion indicated that the matter was returnable on 25 November 1994, although I do notice it does not include a time, just "a.m.". The affidavit of M E Speechley has been read and it supports the quantum of the claim made in the notice of motion.

If the cross-claim was served, as the affidavit of service indicates, a defence to the cross-claim should have been filed within 21 days in accordance with 0 11, r 21. I have been informed that an order was made against the first cross

respondent by Burchett J on 14 October 1994. That was done on the same basis which is relied upon today. The only reason why orders were not made on that occasion against the second cross- respondent, so I have been informed, was that the second cross- respondent had not at that stage been served.

The service of the notice of motion now having taken place, together with service of the affidavit substantiating the debt, in my opinion it is appropriate to make an order under 0 11 r 23. Accordingly, subject to one matter that I will mention in a moment, I direct that judgment be entered for the cross-claimant against the second cross-respondent in the sum of $16,644.66 and I direct that the second cross-respondent pay the costs of the cross-claimant.

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The matter that I mention is that it has been properly drawn to my attention that there is a small disparity between the amount claimed in the cross-claim. That amount was $16,608.99. However, I consider the difference between the two amounts to be not material. I have been informed that the amount in the notice of motion correctly reflects the amount of the debt as substantiated by independent evidence. Accordingly, I consider it appropriate to make the orders that I have referred to and I do so.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate: h 3 f d

Dated: , 1994

Heard :

25 November, 1994

Place:

Sydney

Decision:

25 November, 1994

Appearances:

Mr R Hollo of Mallesons Stephen Jaques,

Solicitors, appeared for the

respondent/cross-claimant.

The cross-respondents did not appear.