JRK Realty Pty Limited v Q1 Financial Services Pty Ltd
[2009] FCA 1095
•24 SEPTEMBER 2009
FEDERAL COURT OF AUSTRALIA
JRK Realty Pty Limited v Q1 Financial Services Pty Ltd [2009] FCA 1095
JRK REALTY PTY LTD ACN 112 515 241 v Q1 FINANCIAL SERVICES PTY LTD ACN 122 080 282, GEORGE CARTHY and DAMIAN LYNCH
NSD 483 of 2009
NATHAN WILLIAM SMART v Q1 FINANCIAL SERVICES PTY LTD ACN 122 080 282, GEORGE CARTHY and DAMIAN LYNCH
NSD 484 of 2009
JACOBSON J
24 SEPTEMBER 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 483 of 2009
BETWEEN: JRK REALTY PTY LTD ACN 112 515 241
PlaintiffAND: Q1 FINANCIAL SERVICES PTY LTD ACN 122 080 282
First DefendantGEORGE CARTHY
Second DefendantDAMIAN LYNCH
Third Defendant
JUDGE:
JACOBSON J
DATE OF ORDER:
24 SEPTEMBER 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The plaintiff have leave to enter judgment against the third respondent, Mr Lynch, for damages in an amount to be assessed by the Court upon the filing of affidavit evidence quantifying the amount of the claim against Mr Lynch.
2.The matter be transferred to the Queensland Registry of the Federal Court of Australia.
3.The first defendant file a notice of appearance by a legal practitioner no later than 7 October 2009.
4.The plaintiff file all the evidence upon which it intends to rely by 15 October 2009.
5.The second defendant file all the evidence upon which it intends to rely by 5 November 2009.
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 the Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 484 of 2009
BETWEEN: NATHAN WILLIAM SMART
PlaintiffAND: Q1 FINANCIAL SERVICES PTY LTD ACN 122 080 282
First DefendantGEORGE CARTHY
Second DefendantDAMIAN LYNCH
Third Defendant
JUDGE:
JACOBSON J
DATE OF ORDER:
24 SEPTEMBER 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The plaintiff have leave to enter judgment against the third respondent, Mr Lynch, for damages in an amount to be assessed by the Court upon the filing of affidavit evidence quantifying the amount of the claim against Mr Lynch.
2.The matter be transferred to the Queensland Registry of the Federal Court of Australia.
3.The first defendant file a notice of appearance by a legal practitioner no later than 7 October 2009.
4.The plaintiff file all the evidence upon which it intends to rely by 15 October 2009.
5.The second defendant file all the evidence upon which it intends to rely by 5 November 2009.
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 the Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 483 of 2009
BETWEEN: JRK REALTY PTY LTD ACN 112 515 241
PlaintiffAND: Q1 FINANCIAL SERVICES PTY LTD ACN 122 080 282
First DefendantGEORGE CARTHY
Second DefendantDAMIAN LYNCH
Third DefendantNSD 484 of 2009 BETWEEN: NATHAN WILLIAM SMART
PlaintiffAND: Q1 FINANCIAL SERVICES PTY LTD ACN 122 080 282
First DefendantGEORGE CARTHY
Second DefendantDAMIAN LYNCH
Third Defendant
JUDGE:
JACOBSON J
DATE:
24 SEPTEMBER 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
When the matter was called on for directions this morning, there was no appearance by Mr Lynch, the third defendant. Mr Bray, who appears for the plaintiff in each proceeding, seeks an order for default judgment pursuant to O 35A of the Federal Court Rules.
I also have before me a motion by the second defendant, Mr Carthy, to change the venue of the proceeding to Queensland pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth).
I will deal firstly with the position of Mr Lynch. I am satisfied that Mr Lynch is in default pursuant to O 35A r 2(b) and (c). This is because Mr Lynch has failed to file a defence in accordance with directions previously made in the proceedings and, as I have said, he has failed to attend this morning’s directions hearing.
In those circumstances, it is appropriate to make an order for default judgment pursuant to O 35A r 3. It seems to me that I ought to exercise my discretion to grant leave to the plaintiff in each proceeding to enter judgment against Mr Lynch.
I do not have evidence of the quantification of the claim against Mr Lynch and I will therefore order that the plaintiff have leave to enter judgment against the third defendant, Mr Lynch, for damages in an amount to be assessed by the Court upon the filing of affidavit evidence quantifying the amount of the claim against Mr Lynch.
I will turn then to Mr Carthy’s motion to change the venue of the proceedings. It is well established that the test which the Court applies on such an application is as stated by a Full Court in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155. The Court there said that the test is:
where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court.
Their Honours said the test cannot be stated more closely or precisely.
Here, all of the witnesses in the proceeding reside in Queensland and it is plain, upon the test stated in National Mutual Holdings v Sentry, that the appropriate exercise of my discretion is to transfer the proceedings to Brisbane.
Indeed, Mr Bray fairly conceded that the balance of convenience points in that direction. The only factor against it is that he conducts his practice in NSW and will need to travel to Brisbane for the final hearing and perhaps also for directions hearings.
Mr Carthy is a director of Q1 Financial Services Pty Ltd, the first defendant. He has filed an appearance on his own behalf and a defence. He has also purported to file a defence for the company. He accepts that the company cannot appear by a director and has informed me that he is taking steps to try to obtain a solicitor to represent the company. That is a matter which may need to be further addressed when the proceeding comes before the docket judge in the Queensland Registry.
I should add that the proceeding seems to be an expensive one which is likely to involve the parties in substantial legal expense. That is a question which I have suggested to the parties should be carefully considered by them, as it appears from the evidence filed by Mr Carthy that he is not in a good financial position and he has told me that Q1 Financial Services is likewise in dire financial straits.
I have not made an order that the proceedings be referred to a mediator pursuant to
O 72 of the Rules of the Court because both Mr Bray and Mr Carthy appear to accept that the better position would be for them to discuss the further conduct of the proceedings directly between themselves.
Accordingly I will make orders which include an order for the transfer of the proceedings to the Queensland Registry under s 48 of the Federal Court Act and, as I said, I will also order judgment against Mr Lynch.
The further orders I will make will be as follows:
1.The first respondent is to file a notice of appearance by a legal practitioner no later than 7 October 2009.
2.I will order the applicants to file all the evidence on which they propose to rely by 15 October 2009.
3.I will order the second respondent to file his evidence by 5 November 2009.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 24 September 2009
Solicitor for the Plaintiff: Thomas Henry Bray Lawyers The Second Defendant appeared in person.
Date of Hearing: 24 September 2009 Date of Judgment: 24 September 2009
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