Hanjin Shipping Australia Pty Ltd v IWS Australia and New Zealand Pty Ltd

[2016] FCCA 530

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANJIN SHIPPING AUSTRALIA PTY LTD & ANOR v IWS AUSTRALIA AND NEW ZEALAND PTY LTD [2016] FCCA 530

Catchwords:
PRACTICE & PROCEDURE – Default judgment – whether the Court has jurisdiction to grant the relief sought – whether the Plaintiffs appear entitled to the amount claimed – default judgment entered.

Legislation:
Admiralty Act 1988 (Cth), ss.4, 9
Federal Circuit Court Rules 2001 (Cth), Schedule 1

First Plaintiff: HANJIN SHIPPING AUSTRALIA PROPRIETARY LIMITED (ACN 122 089 436)

Second Plaintiff: HANJIN SHIPPING LIMITED

Defendant: IWS AUSTRALIA AND NEW ZEALAND PROPRIETARY LIMITED (ACN 131 913 169)

File Number: SYG 291 of 2016

Judgment of: Judge Emmett

Hearing date: 11 March 2016

Date of Last Submission: 11 March 2016

Delivered at: Sydney

Delivered on: 11 March 2016

REPRESENTATION

Solicitor for the Plaintiffs: Mr James Neill
(Aus Ship Lawyers)

No appearance on behalf of the Defendant.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 291 of 2016

HANJIN SHIPPING AUSTRALIA PROPRIETARY LIMITED (ACN 122 089 436)

First Plaintiff

HANJIN SHIPPING LIMITED

Second Plaintiff

And

IWS AUSTRALIA AND NEW ZEALAND PROPRIETARY LIMITED (ACN 131 913 169)

Defendant

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the Plaintiffs for default judgment against the Defendant pursuant to rr.13.03A and 13.03B of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) in the amount of $4,180.

2. For the reasons below, I am satisfied that default judgment should be entered for the Plaintiffs against the Defendant for the amount sought.

Background

1. The Plaintiffs had entered into various contracts with the Defendant for the provision of shipping services, shipping containers and shore side services, totalling in the amount of $3,058. 

2. On 6 November 2015, it was agreed between the parties that the Defendant would pay the $3,058 in instalments as follows:

   i)$1,058 by 10 November 2015;

   ii)$1,000 by 10 December 2015; and

   iii)$1,000 by 10 January 2016.

3. The Defendant paid the first two instalments on time but failed to pay the final instalment by 10 January 2016.

4. On 11 February 2016, the Plaintiffs filed an application in this Court in its Admiralty Division, seeking an order that the Defendant pay the final instalment, plus interest and costs.

The proceeding before this Court

1. On 1 March 2016, the matter came before me for a First Court Date.

2. On that occasion, the Plaintiffs were represented by Mr James Neill, solicitor. There was no appearance on behalf of the Defendant.

3. Mr Neill told the Court that the Plaintiffs were seeking default judgment against the Defendant in the sum of $5,180. That amount was calculated as follows:

   i)$1,000 for the unpaid instalment;

   ii)$1,445 for the Court filing fee; and

   iii)$ 2,735 for legal costs.

4. On 1 March 2016, in the absence of the appearance of the Defendant, I made the following orders:

   “1. The matter proceed by way of pleadings.

   2. The Defendant is to file and serve any Defence by 10 March 2016.

   3. In the event that there is no Defence filed and there is no appearance by or on behalf of the Defendant on the next occasion, the matter may proceed to a default judgment hearing without further notice to the Defendant.

   4. The Plaintiffs serve a copy of this Order on the Defendant forthwith.

   5. The matter is otherwise stood over for further directions on 11 March 2016 at 11:00am, before me.”

5. At the commencement of today’s hearing, Mr Neill was granted leave to file in Court and rely on the following affidavits:

   i)Affidavit of Service, affirmed by James Neill on 10 March 2016; and

   ii)Affidavit affirmed by James Neill on 10 March 2016; and

   iii)Affidavit of Debt, affirmed by James Neill on 11 March 2016.

6. The Affidavit of Service annexed a copy of an email chain between Mr Neill and the sole director of the Defendant, Karen Furnell, in which Ms Furnell confirmed receipt of a copy of the Court’s Orders made on 1 March 2016. On the basis of that Annexure and the other evidence contained in Mr Neill’s Affidavit of Service, I am satisfied that a copy of the Orders made by me on 1 March 2016 was duly served upon the Defendant and that the Defendant is aware of the nature of the Orders made on 1 March 2016 and today’s hearing.

7. In the Affidavit of Debt, Mr Neill deposed that on 7 March 2016, the Defendant paid the outstanding $1,000 instalment to the Plaintiffs.

8. In the circumstances, the Plaintiffs seek default judgment only in respect of the relevant disbursements, being the Court filing fee of $1,445 and legal costs of $2,735 in accordance with Part 1 of Schedule 1 to the Rules.

Considerations relevant to default judgment

1. On an application for default judgment under r.13.03B of the Rules, the Court must be satisfied of two critical factors. The first is that the Court has jurisdiction to grant the relief sought. The second is that the Plaintiffs appear entitled to the amount claimed.

2. In relation to the jurisdiction of the Court, s.9 of the Admiralty Act 1988 (Cth) (“the Admiralty Act”) confers jurisdiction on this Court in respect of proceedings commenced as actions in personam in respect of a maritime claim.

3. Section 4(3)(f) of the Admiralty Act provides that a reference in the Admiralty Act to a general maritime claim is a reference to, inter alia, a claim arising out of an agreement that relates to the carriage of goods or persons via ship or to the use or hire of a ship, whether by charterparty or otherwise.

4. I am satisfied that the shipping services referred to by the Plaintiffs in its Statement of Claim filed on 11 February 2016 enlivens the jurisdiction of this Court.

5. In relation to the Plaintiffs’ entitlement to the amount claimed, I note that Annexure D to the Affidavit of James Neill affirmed 10 March 2016 made clear to the Defendant that, in the event the Defendant failed to file any Defence or make an appearance in Court today, the Plaintiffs intended to pursue default judgment in respect of its disbursements and legal costs.

6. Part 1 of Schedule 1 to the Rules provides for costs in the amount of $2,735 in respect of an initiating or opposing application in a general federal law proceeding, up to the completion of the first court date. In the circumstances, I am satisfied that the Plaintiffs are entitled at least to that amount of costs.

7. Further, as stated above, on the evidence before me, including Annexure D to the Affidavit of James Neill affirmed 10 March 2016, I am satisfied that the Defendant is aware of today’s proceeding.

8. In the circumstances, based on the evidence before me, I am satisfied that that the Plaintiffs appear entitled to the amount claimed; that the Defendant has not satisfied the Plaintiffs’ claim; and, that the Court has jurisdiction to grant the relief sought by the Plaintiffs.

9. As stated above, the amount initially claimed by the Plaintiffs was $5,180. However, since the Defendant’s payment to the Plaintiffs of the outstanding $1,000 instalment, the total now claimed by the Plaintiffs is $4,180.

10. In the circumstances, I am satisfied that judgment should be entered for the Plaintiffs in the sum of $4,180.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 23 March 2016