Graham v Trustee for the Fortunity Business Services Trust

[2007] FMCA 2132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRAHAM v TRUSTEE FOR THE FORTUNITY BUSINESS SERVICES TRUST & ANOR [2007] FMCA 2132

PRACTICE & PROCEDURE – Orders – non-compliance with orders.

Applicant: CHRISTINE GRAHAM

First Respondent: TRUSTEE FOR THE FORTUNITY BUSINESS SERVICES TRUST T/AS FORTUNITY

Second Respondent: TRUSTEE FOR PURKISS CULLEN BUSINESS SERVICES UNIT TRUST T/AS FORTUNITY

File number: SYG 2271 of 2007

Judgment of: Raphael FM

Hearing date: 20 December 2007

Date of last submission: 20 December 2007

Delivered at: Sydney

Delivered on: 20 December 2007

REPRESENTATION

Solicitors for the Applicant: Central Coast Business Lawyers

Respondent: No appearance

ORDERS

Upon hearing Mr Tripodi for the applicant, the respondents not appearing:

1. Respondents to pay the applicant’s costs assessed in the sum of $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2271 of 2007

CHRISTINE GRAHAM

Applicant

And

TRUSTEE FOR THE FORTUNITY BUSINESS SERVICES UNIT TRUST T/AS FORTUNITY

First Respondent

TRUSTEE FOR THE PURKISS CULLEN BUSINESS SERVICES UNIT TRUST T/AS FORTUNITY

Second Respondent

REASONS FOR JUDGMENT

1. This matter has been brought back into court pursuant to the liberty to apply provisions of my Orders of 5 September 2007. On that day, a generous timetable was agreed between the parties, both of whom were represented.  It provided that the applicant file and serve all evidence in chief by 17 October 2007 and that the respondents file and serve their evidence in chief by the 28 November 2007. In particular, it provided  that the parties were to participate in a mediation before a Registrar of this Court before 20 December 2007.

2. I am informed by Mr Tripodi, who appears on behalf of the applicant that his client’s evidence was filed on 17 October 2007 and that no evidence has been filed by the respondents, nor have the respondents responded to letters addressed to their solicitors by those acting for the applicant.  The mediation has not taken place.

3. When the matter was called on for hearing this morning, there was no appearance on behalf of the respondents.  The applicant initially sought to have the court agree a revised timetable, but I am reluctant to do that given that there is a hearing date set down for the 6 and 7 February 2008.  It seems to me that the most appropriate course to take would be to allow the original timetable to remain and note the breaches on the part of the respondents, as well as the respondents’ failure to attend today. In these circumstances, it is unlikely without a very persuasive explanation that any evidence will be allowed to be filed on the part of the respondents and that there may well be severe cost implications arising out the respondents’ failure to comply with the order that the matter be referred to mediation. 

4. I will be returning to this court on 21 January 2008. If the respondents wish to take any steps to alleviate the dire situation in which they now find themselves, they should do so as early as possible. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  21 December 2007