Maerbani v Dell Cleaning Group Sydney Pty Ltd
[2014] FCA 546
FEDERAL COURT OF AUSTRALIA
Maerbani v Dell Cleaning Group Sydney Pty Ltd [2014] FCA 546
Citation: Maerbani v Dell Cleaning Group Sydney Pty Ltd [2014] FCA 546 Parties: ALI EL MAERBANI v DELL CLEANING GROUP SYDNEY PTY LTD (ACN 155 338 800), LEE NGUYEN and AHMED DAIFALLA File number: NSD 337 of 2013 Judge: EDMONDS J Date of judgment: 26 May 2014 Legislation: Federal Court Rules 2011 r 5.23 Date of hearing: 16 May 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 23 Counsel for the Applicant: Mr A Cornish Solicitor for the Applicant: Macquarie Lawyers Burwood Solicitor for the Third Respondent: Stewart & Associates
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 337 of 2013
BETWEEN: ALI EL MAERBANI
ApplicantAND: DELL CLEANING GROUP SYDNEY PTY LTD (ACN 155 338 800)
First RespondentLEE NGUYEN
Second RespondentAHMED DAIFALLA
Third Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
26 MAY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Judgment be entered against the first and second respondents in the sum of $198,000.
2.The first and second respondents pay the costs of both the applicant and the third respondent, to be taxed.
3.The applicant have leave to discontinue the proceeding against the third respondent by filing a notice of discontinuance.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 337 of 2013
BETWEEN: ALI EL MAERBANI
ApplicantAND: DELL CLEANING GROUP SYDNEY PTY LTD (ACN 155 338 800)
First RespondentLEE NGUYEN
Second RespondentAHMED DAIFALLA
Third Respondent
JUDGE:
EDMONDS J
DATE:
26 MAY 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This matter was set down for hearing commencing today, Monday, 26 May 2014, continuing tomorrow, Tuesday, 27 May 2014 and concluding on Thursday, 29 May 2014.
On Friday, 16 May 2014, I heard an application by the applicant pursuant to r 5.23(2)(c) of the Federal Court Rules 2011 for an order giving judgment against the first and second respondents for the relief claimed in the applicant’s further amended statement of claim filed 4 July 2013 by reason of default on the part of the first and second respondents in complying with orders of the Court and by reason of the foreshadowed default on the part of the second respondent in attending the hearing scheduled to commence today.
On that occasion, I indicated to the applicant’s counsel that I was not prepared to decide the applicant’s application for default judgment until I knew whether the second respondent’s foreshadowed default in attendance today was actual. I therefore reserved.
On the matter being called outside the Court at 10:15 a.m. this morning, there was no attendance by or on behalf of the second respondent. Nor was there any attendance on behalf of the first respondent.
BACKGROUND
This matter was commenced by an originating application (filed 28 February 2013), amended (filed 1 May 2013), supported by a statement of claim (filed 28 February 2013), amended (filed 1 May 2013) and further amended (filed 4 July 2013).
The first and second respondents filed a defence to the amended statement of claim on 14 June 2013 and the applicant filed a reply on 28 June 2013. The third respondent filed a defence to the further amended statement of claim on 21 October 2013.
Originally, all parties were legally represented but on 8 January 2014 Mr Timothy Mak of DCS Lawyers Pty Ltd filed a notice of ceasing to act on behalf of the first and second respondents. Subsequently, on 20 February 2014, Mr Mak filed a notice of acting on behalf of the first and second respondents and attended a directions hearing on 26 February 2014. Mr Mak however did not attend the next directions hearing on 27 March 2014 and filed a notice of acting shortly thereafter, on 2 April 2014. The first and second respondents have therefore entered no appearance at any directions since 27 March 2014.
Earlier, on 21 October 2013, I set the matter down for final hearing commencing on 2 June 2014 (subsequently changed to 23 June 2014) with an estimate of five days. I also ordered that the parties contact the Court’s Registry to arrange a mediation of the matter before the end of the then current term. On 7 November 2013, all parties advised that they were available for mediation on 11 December 2013. On 10 December 2013, Ms Charlene Hunt of DCS Lawyers Pty Ltd advised the Registry and the other parties by email as follows:
Our client, Mr Lee Nguyen (representative of the first respondent, and the second respondent), has indicated through a third party in Australia, that he is currently overseas on business, but is non contactable on Wednesday and cannot attend mediation.
We do not have instructions to attend the mediation on our clients behalf. Therefore, we have no option but to indicate that neither our client [n]or ourselves will be attending mediation tomorrow, and request that the mediation be cancelled.
At the request of the applicant, I listed the matter for directions on 23 January 2014 at which the matters outlined above were confirmed. On that occasion, the solicitor representing the applicant indicated that she thought it was unlikely there would be any further attendances by or on behalf of the first and second respondents. As indicated in [7] above, that has proved to be correct. The solicitor for the applicant also indicated that, based on information she had obtained, it was unlikely that either the first or second respondents would be able to meet any judgment against them. The former no longer carried on a business enterprise and the latter’s only asset was a parcel of real estate in Western Australia, details of which were unknown. Finally, she indicated that she had reason to believe that the second respondent had left Australia. She did not know whether this was permanent, but it was not temporary. From answers to interrogatories filed by the first and second respondents on 1 April 2014, as to which see [12] below, it seems that if the second respondent returned to Australia after the directions hearing on 23 January 2014, he had left again on some date in March 2014 and was still in Cambodia as at 31 March 2014.
As a result of what I was informed at the directions hearing on 23 January 2014, I decided to accelerate the final hearing of this matter. I vacated the hearing dates commencing 23 June 2014 and set the matter down for hearing commencing 7 April 2014 with a similar time estimate.
Subsequently, on 26 February 2014, I granted the applicant leave to request the first and second respondents to answer interrogatories going to the financial operations and standing of the first respondent; and the whereabouts of the second respondent and, if he was absent from Australia, when he proposed to return.
On 1 April 2014, the second respondent filed answers to those interrogatories. As indicated in [9] above, it is clear from his answers that the second respondent was in Cambodia at the time (31 March 2014) and was unable, or not prepared, to provide any specificity as to when he left Australia, his address in Cambodia or when he intended to return to Australia. He did answer that he had no prepaid ticket to return and, at that stage, the final hearing was to commence in seven days.
On the same date, the second respondent electronically filed an affidavit sworn by him on 31 March 2014 in Cambodia in which he deposed:
3.I wish to advise that I can not attend nor appoint Barrister Liza Friedwald of Frederick Jordan Chambers or DC Strategy Lawyers to represent me on the Court Hearing day the 7th April 2014 because I am and the Company are financially drained after the loss of the Hert[z] Sydney cleaning contract, and subsequently other cleaning contracts (from Dell Cleaning Group Pty Ltd).
The second respondent did not explain why he could not himself attend the hearing. I can only speculate that it was because he was still in Cambodia.
On 2 April 2014, Mr Mak filed a notice of ceasing to act on behalf of the first and second respondents.
In the face of these developments, I again vacated the hearing dates commencing 7 April 2014 and refixed the hearing for three days commencing today. All parties, including the first and second respondents, were notified.
On 7 May 2014, the first respondent electronically filed an interlocutory application seeking the leave of the Court to file and serve additional evidence, but nothing further has been done to prosecute that application.
On or about 22 May 2014, the second respondent electronically filed a document headed “Opening Statement”. It is not clear what this document purports to be – an unsworn statement of the second respondent to be tendered in evidence; or whether it is relied on by way of submission only.
CONCLUSION ON APPLICANT’S APPLICATION FOR DEFAULT JUDGMENT
I am satisfied that on the face of the further amended statement of claim there is a claim for the relief sought in the sense that it is properly and discretely pleaded. While the first and second respondents have filed a defence to the amended statement of claim, they have failed to pursue it with due diligence.
The defaults which have occurred in both non-compliance with orders of the Court and non-attendance at hearings are serious, not of a minor nature, and sufficient to warrant the exercise of the Court’s discretion to enter default judgment.
In the circumstances, and notwithstanding the extent of the relief sought in the amended originating application, I propose to confine the terms of the judgment entered against the first and second respondents to the sum of the payments the applicant pleaded he made to the second respondent, namely, $198,000 (para 10 of the further amended statement of claim).
The first and second respondents must pay the costs of both the applicant and the third respondent, to be taxed.
At the conclusion of the hearing on 16 May 2014, I indicated that I would grant the applicant leave to discontinue the proceeding against the third respondent.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 26 May 2014
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