FEDERAL COURT OF AUSTRALIA
Luna Park Sydney Pty Limited (ACN 102 907 184) v Bose [2006] FCA 94
PRACTICE AND PROCEDURE – application for default judgment – whether failure of respondents to defend the proceedings with due diligence
Federal Court Rules – Order 35A
Arthur v Vaupotic Investments Pty Limited [2005] FCA 433 cited
Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856 cited
Australian Securities Commission v McLeod (1994) 54 FCR 309 referred to
Commissioner of Taxation v Finn (1960) 103 CLR 165 referred to
Grey v Mango Prepaid Calling Cards Pty Limited [2004] FCA 1664 referred to
Wu v Avin Operations Pty Limited (ACN 076 956 913) [2006] FCA 36 distinguished
Zomba Production Music v. Roadhouse Productions (2001) 190 ALR 288 referred toLUNA PARK SYDNEY PTY LIMITED (ACN 102 907 184) v ZACHARY ART BOSE AND DROP DEAD PROMOTIONS LIMITED (NZ) (NZCN 15 40 477)
NSD534 OF 2005
JACOBSON J
8 FEBRUARY 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD534 of 2005
BETWEEN:
LUNA PARK SYDNEY
PTY LIMITED (ACN 102 907 184)
APPLICANTAND:
ZACHARY ART BOSE AND
FIRST RESPONDENT
DROP DEAD PROMOTIONS
LIMITED (NZ) (NZCN 15 40 477)
SECOND RESPONDENTJUDGE:
JACOBSON J
DATE OF ORDER:
8 FEBRUARY 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The applicant is given leave to file a notice of motion in court, returnable instanter, pursuant to Order 19 Rule 3.
2. Default judgment is ordered, pursuant to Order 35 Rule (2)(2)(h).
3. The respondents pay the Applicant damages in the amount of AUD$125,193.95;
4. The respondents pay the applicant interest on the amount of AUD$125,193.95 at an interest rate of 10.5% per year calculated over the period from 30 September 2004 to 8 February 2006;
5. The respondents pay the applicant’s costs on a party-party basis.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD534 of 2005
BETWEEN:
LUNA PARK SYDNEY
PTY LIMITED (ACN 102 907 184)
APPLICANTAND:
ZACHARY ART BOSE AND
FIRST RESPONDENT
DROP DEAD PROMOTIONS
LIMITED (NZ) (NZCN 15 40 477)
SECOND RESPONDENTJUDGE:
JACOBSON J
DATE:
8 FEBRUARY 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This is an application for default judgment pursuant to Order 35A of the Federal Court Rules. The applicant seeks default judgment by reason of the failure of the respondents to defend the proceedings with due diligence.
The notice of motion seeking default judgment was filed in court today. It was served on Friday, 3 February 2006, which is less than the three days clear notice prescribed by the rules. I will refer to this later.
The proceedings relate to the planned performance of a performer known as "Busta Rhymes" at Luna Park Sydney. The applicants claim that they entered into a contract with Mr Bose of Drop Dead Promotion New Zealand, as agent for Busta Rhymes, for the performance…
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- Case
- [2006] FCA 94
- Decision Date
CaseChat Overview and Summary
The primary issue before the court was whether the respondents' failure to defend the proceedings justified the granting of default judgment. The applicants sought an order for damages, interest, and costs. The respondents had ceased to be represented by legal counsel and had not responded to the applicants' attempts to serve the notice of motion for default judgment. The court had to assess whether the respondents were in default and if the applicants' claims were substantiated enough to warrant a default judgment.
The court determined that the respondents' failure to appear or defend the proceedings constituted a default. The court noted that both firms of solicitors retained by the respondents had ceased to act, indicating that the respondents were not actively defending the case. Additionally, the court found that the applicants had provided sufficient evidence to support their claims, and the lack of a defence did not negate the validity of the claims. Therefore, the court concluded that the applicants' claims were substantiated, and the court's powers to make orders on default were applicable.
Accordingly, the court granted the applicants' motion for default judgment. The respondents were ordered to pay the applicants AUD$125,193.95 in damages, interest at a rate of 10.5% per annum from 30 September 2004 to 8 February 2006, and the applicants' costs on a party-party basis. This decision effectively resolved the dispute in favour of the applicants, confirming the respondents' liability for the breach of contract.
Orders
Orders of the court
1. The applicant is given leave to file a notice of motion in court, returnable instanter, pursuant to Order 19 Rule 3.
2. Default judgment is ordered, pursuant to Order 35 Rule (2)(2)(h).
3. The respondents pay the Applicant damages in the amount of AUD$125,193.95;
4. The respondents pay the applicant interest on the amount of AUD$125,193.95 at an interest rate of 10.5% per year calculated over the period from 30 September 2004 to 8 February 2006;
5. The respondents pay the applicant’s costs on a party-party basis.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: JACOBSON J
Full text does not contain this section.