Globe Services Pty Ltd v Ontera Modular Carpets Pty Ltd
[2015] FCA 1023
•14 September 2015
FEDERAL COURT OF AUSTRALIA
Globe Services Pty Ltd v Ontera Modular Carpets Pty Ltd [2015] FCA 1023
Citation: Globe Services Pty Ltd v Ontera Modular Carpets Pty Ltd [2015] FCA 1023 Parties: GLOBE SERVICES PTY LTD ACN 158 383 969 v ONTERA MODULAR CARPETS PTY LTD ACN 083 532 129 File number(s): NSD 582 of 2015 Judge(s): GRIFFITHS J Date of judgment: 14 September 2015 Catchwords: PRACTICE AND PROCEDURE – dismissal of proceedings after the plaintiff failed to attend the hearing – where the plaintiff had not participated in the proceeding after its former solicitor had ceased to act for it – where the plaintiff failed to respond to the defendant and the Federal Court of Australia Registry’s queries concerning the plaintiff’s attitude to the hearing Legislation: Corporations Act 2001 (Cth) ss 459G, 459H, 459J
Federal Court Rules 2011 (Cth) r 30.21Date of hearing: 14 September 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 11 Counsel for the Plaintiff: There was no appearance by the plaintiff Counsel for the Defendant: Ms F Ashworth Solicitor for the Defendant: Results Legal
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 582 of 2015
BETWEEN: GLOBE SERVICES PTY LTD ACN 158 383 969
PlaintiffAND: ONTERA MODULAR CARPETS PTY LTD ACN 083 532 129
Defendant
JUDGE:
GRIFFITHS J
DATE OF ORDER:
14 SEPTEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to rule 30.21(1)(a)(i) of the Federal Court Rules 2011 the originating application be dismissed.
2.The plaintiff pay the defendant’s costs as agreed or assessed.
3.Within 48 hours hereof, the defendant’s solicitor must send by express post a copy of these orders and ex tempore reasons for judgment to the plaintiff care of PJS Accountants, “The Hub”, Level 1, 2 Loraine Street, Capalaba Queensland 4157.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 582 of 2015
BETWEEN: GLOBE SERVICES PTY LTD ACN 158 383 969
PlaintiffAND: ONTERA MODULAR CARPETS PTY LTD ACN 083 532 129
Defendant
JUDGE:
GRIFFITHS J
DATE:
14 SEPTEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The defendant seeks an order under r 30.21 of the Federal Court Rules 2011 to have the proceedings dismissed for want of any appearance by the plaintiff when the matter was called on for trial this morning.
It is appropriate to set out some background matters. On 22 May 2015, the plaintiff filed an originating process seeking to have a statutory demand against it set aside. The application was said to be made under ss 459G, 459H and 459J of the Corporations Act 2001 (Cth). In support of its application, the plaintiff filed an affidavit dated 22 May 2015 prepared by Stephen Georgiou, the plaintiff’s chief executive officer. It also relied on an affidavit dated 21 May 2015 sworn by Michael Georgiou, who described himself as a director of the plaintiff.
Registrar Segal made orders on 10 June 2015 regarding the filing of evidence. Pursuant to those orders, the defendant subsequently filed three affidavits.
On 14 July 2015, the proceeding having been allocated to my docket, the matter was set down for hearing today, Monday 14 September 2015 at 10.15 am for no more than half a day. Orders were also made for the parties to file and serve outlines of written submissions. In the case of the plaintiff, it was directed to file its outline of written submissions in chief on or before 7 September 2015. This never occurred.
On 27 August 2015, the plaintiff’s then solicitor filed a notice of ceasing to act. No other solicitor is currently recorded as acting for the plaintiff.
The Commonwealth Courts Portal does contain a reference to the plaintiff’s legal representative being care of D Riggio & Associates, Suite 27, Level 3, 301 Castlereagh Street, Sydney. This information was very properly brought to the Court’s attention by Ms Ashworth who appears for the defendant. Enquiries were made as to the background of that information being included on the Portal. It appears that information was entered erroneously by the Registry on 22 May 2015 when the proceedings were commenced. The Portal also contains the name of the solicitors who, up until 27 August 2015, acted for the plaintiff. I am satisfied the information relating to D Riggio & Associates is incorrect and that there is no legal representative acting for the plaintiff.
The plaintiff’s former solicitor’s notice of ceasing to act gave a postal address for the plaintiff care of a firm of accountants in Capalaba, Queensland. The Registry contacted that firm on 10 September 2015 and was told that the firm had no information about the hearing but said that they would pass on the Registry’s telephone number to the plaintiff directly.
The plaintiff has not contacted the Registry.
In support of its current application the defendant relied on an affidavit of Anna Taylor dated 11 September 2015. Ms Taylor is a solicitor who acts for the defendant. Ms Taylor said that, having received a copy of the notice of ceasing to act, she wrote to the former solicitors on 9 September 2015 requesting contact details for the plaintiff. She also sought to contact the plaintiff on both a landline and mobile number. She discovered that the landline was disconnected but she left a telephone message on the mobile number (which apparently was the mobile number of a director of the plaintiff). She said that on 9 September 2015 she received a blank email from the plaintiff’s director and that she responded to it on 10 September 2015 by sending an email to Stephen Georgiou in which she urgently asked him to advise as to his intentions regarding the hearing scheduled to take place the following Monday, today. No response has been received to that request. The matter was called twice this morning at my request, but no appearance was announced by the plaintiff.
In all these circumstances, I find that the plaintiff is well aware of the fact that its application was due to be heard today. It has failed to provide an outline of written submissions in support of its application despite the Court’s direction, and has taken no step in the proceeding after its former solicitors ceased to act. It has also failed to respond to the steps taken both by the Registry and the defendant’s solicitor to seek to ascertain its attitude to the scheduled hearing of its application today.
In all these circumstances, I consider that it is appropriate to make the order sought by the defendant, together with an order for costs in favour of the defendant.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 14 September 2015
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