Finite Recruitment Pty Ltd v Spain

[2009] FCA 1600

FEDERAL COURT OF AUSTRALIA

Finite Recruitment Pty Ltd v Spain [2009] FCA 1600

FINITE RECRUITMENT PTY LTD (ACN 085 406 300) v MIKE SPAIN

NSD 1646 of 2008

LINDGREN J
13 NOVEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1646 of 2008

BETWEEN:	FINITE RECRUITMENT PTY LTD (ACN 085 406 300) Applicant
AND:	MIKE SPAIN Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	13 NOVEMBER 2009
WHERE MADE:	SYDNEY

THE COURT NOTES THAT

1.The applicant has not filed a notice of discontinuance.

THE COURT ORDERS THAT

2.The applicant be relieved from any consequences of the non-filing of the notice of discontinuance.

3.The proceeding be reinstated to the intent that it be on foot as a current proceeding.

4.The respondent pay the applicant a sum of $20,534.82 representing the applicant’s legal costs of $22,401.62 less one payment made of $1,866.80.

5.The respondent pay interest on the sum of $20,534.82 from 2 September 2009 until today’s date at the rate for the time being fixed under s 2 of the Penalty Interest Rates Act 1983 (Victoria).

6.The respondent pay the applicant’s costs of and incidental to the motion brought by notice of motion filed on 2 September 2009 calculated on a full indemnity basis.

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
GENERAL DIVISION	NSD 1646 of 2008

BETWEEN:	FINITE RECRUITMENT PTY LTD (ACN 085 406 300) Applicant
AND:	MIKE SPAIN Respondent

JUDGE:	LINDGREN J
DATE:	13 JANUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a record of the reasons why I made the orders on 13 November 2009 that appear at the front of these reasons.

2. By its application filed on 17 October 2008 the applicant, Finite Recruitment Pty Ltd (Finite), applied for orders restraining the respondent (Mr Spain), a former employee of Finite, from disclosing confidential information and soliciting Finite’s customers.

3. On 20 November 2008 Finkelstein J ordered that the proceeding “be discontinued with a right of reinstatement” and that there be no order as to costs.  Those orders were made by consent in accordance with short minutes of orders signed by the solicitor for Finite and by Mr Spain.

4. The orders were made pursuant to Terms of Settlement dated 8 November 2008.  By para 2 of that document, in consideration of Finite’s undertaking to discontinue the proceeding, Mr Spain undertook to pay Finite’s legal costs of $22,401.62.  By para 3 Mr Spain undertook to pay that amount by 12 monthly instalments of $1,866.80 on the 11th day of each month from and including December 2008 to and including November 2009.

5. By paras 8 –11 of the Terms of Settlement, it was, in general terms, agreed that if Mr Spain should default, Finite should be entitled to apply for and obtain by consent certain orders including, as the first order, an order that the proceeding be “reinstated”.

6. Mr Spain defaulted.

7. By notice of motion filed on 2 September 2009 Finite sought orders pursuant to paras 8 – 11 of the Terms of Settlement.

8. Mr Spain filed a notice of appearance on 3 September 2009.  He appeared in person, that is to say, he was not legally represented.

9. The affidavit of Jennifer Louise Gearing sworn 31 August 2009 showed that Mr Spain had made only one of the 12 monthly payments.  Her affidavit, to which a copy of Terms of Settlement was annexed also supported the other orders that I made on 13 November 2009.

10. On the hearing of the motion Mr Spain “appeared” by telephone.  He did not dispute that he had defaulted or that Finite was entitled to the orders that it was seeking.  Rather, Mr Spain said that his financial circumstances had caused him to default.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:        13 January 2010

Solicitors for the Applicant:	Mr D J Hand, solicitor, agent for Wood Fussell Solicitors
The Respondent appeared in person by telephone.
Date of Hearing:	13 November 2009
Date of Judgment:	13 November 2009
Date of Publication of Reasons:	13 January 2010