Coast 2 Coast Earthmoving Pty Ltd v Stratti

[2009] FCA 130

FEDERAL COURT OF AUSTRALIA

Coast 2 Coast Earthmoving Pty Ltd v Stratti [2009] FCA 130

PRACTICE AND PROCEDURE – default judgment – respondent had not entered an appearance or filed a defence – service effective – respondent in default – judgment given.

Federal Court Rules O 35A r 3, O 62 r 36A

COAST 2 COAST EARTHMOVING PTY LIMITED v TROY KENNETH STRATTI

NSD 1696 of 2008

BUCHANAN J
13 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1696 of 2008

BETWEEN:	COAST 2 COAST EARTHMOVING PTY LIMITED Applicant
AND:	TROY KENNETH STRATTI Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	13 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Judgment be entered for the applicant against the respondent in the sum of $87,527.23.

2.The respondent pay the applicant’s costs of and incidental to the proceeding fixed in the sum of $8,000.00.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1696 of 2008

BETWEEN:	COAST 2 COAST EARTHMOVING PTY LIMITED Applicant
AND:	TROY KENNETH STRATTI Respondent

JUDGE:	BUCHANAN J
DATE:	13 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. These proceedings were commenced by application and statement of claim filed on 28 October 2008.  No defence has been filed by the respondent.  On 28 November 2008, I made orders for substituted service on the respondent, having received evidence that efforts to serve him normally with the application and statement of claim had been to no avail.  I am satisfied from affidavit material, subsequently filed, that service was carried out in accordance with those orders.  The orders provided, amongst other things, that service would be deemed to be effective 14 days after the last of a series of steps of substituted service.  The last of those steps occurred on 5 December 2008 and service was therefore effected by 19 December 2008.

2. The respondent has failed to file an appearance, to file a defence or to attend any directions hearing.  Dr Greinke, who appears for the applicant, has today asked me to make an order for judgment on default under O 35A r 3 of the Federal Court Rules.  He has persuaded me that it is appropriate to make such an order.  I gave Dr Greinke leave to file in Court written submissions which identify the justification for making the order and the calculation of the sum which is sought by way of judgment.  The principal sum which is sought is $70,065.15.  To that an amount of interest should be added to yield a total sum for which judgment will be given of $87,527.23.

3. Evidence has been filed concerning the costs which the applicant has incurred in relation to the present proceedings.  They amount to $14,569.19.  Based upon that sum, a reasonable estimate of party-party costs is said to be $12,000.  Under O 62 r 36A of the Federal Court Rules, that sum should be reduced by one-third.  Costs are therefore sought in the sum of $8,000.  I am satisfied that is a reasonable amount in the circumstances and the respondent will be required to pay costs in that amount.

4. I make orders in the form of the orders handed up this morning.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:       20 February 2009

Counsel for the Applicant:	Dr A J Greinke
Solicitor for the Applicant:	Reichman Lawyers

Date of Hearing:	13 February 2009
Date of Judgment:	13 February 2009