Luna Park Sydney Pty Ltd v Bose

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 to

LUNA 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)
APPLICANT

AND:

ZACHARY ART BOSE AND

FIRST RESPONDENT

DROP DEAD PROMOTIONS
LIMITED (NZ) (NZCN 15 40 477)
SECOND RESPONDENT

JUDGE:

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)
APPLICANT

AND:

ZACHARY ART BOSE AND

FIRST RESPONDENT

DROP DEAD PROMOTIONS
LIMITED (NZ) (NZCN 15 40 477)
SECOND RESPONDENT

JUDGE:

JACOBSON J

DATE:

8 FEBRUARY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

1. 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. 

2. 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.

3. 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…