Needlework Warehouse Pty Limited v Chansonette Pty Ltd

[2006] FCA 1185

FEDERAL COURT OF AUSTRALIA

Needlework Warehouse Pty Limited v Chansonette Pty Ltd [2006] FCA 1185

NEEDLEWORK WAREHOUSE PTY LIMITED & ORS v
CHANSONETTE PTY LTD & ANOR

NSD 1302 of 2003

LINDGREN J
16 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1302 OF 2003

BETWEEN:

NEEDLEWORK WAREHOUSE PTY LIMITED
(ACN 101 863 709)
FIRST APPLICANT/CROSS RESPONDENT

ALAN JAMES MEIER
SECOND APPLICANT

TANCOT PTY LIMITED
(ACN 059 311 278)
THIRD APPLICANT

AND:

CHANSONETTE PTY LTD
(ACN 092 507 938)
FIRST RESPONDENT/FIRST CROSS CLAIMANT

WILLIAM LOWE EDGE
SECOND RESPONDENT/SECOND CROSS CLAIMANT

JUDGE:

LINDGREN J

DATE OF ORDER:

16 AUGUST 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The first respondent be granted leave to file in Court the affidavit of Brenden John Miller sworn 16 August 2006.

2.The proceeding be dismissed.

3.The applicants pay the first respondent’s costs of the proceeding.

4.The cross-claim in so far as it is brought by the first respondent be dismissed, with no order as to costs.

5.The existing hearing fixture of 18 – 22 September 2006 and 16 – 18 October 2006 be vacated.

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	NSD 1302 OF 2003

BETWEEN:

NEEDLEWORK WAREHOUSE PTY LIMITED
(ACN 101 863 709)
FIRST APPLICANT/CROSS RESPONDENT

ALAN JAMES MEIER
SECOND APPLICANT

TANCOT PTY LIMITED
(ACN 059 311 278)
THIRD APPLICANT

AND:

CHANSONETTE PTY LTD
(ACN 092 507 938)
FIRST RESPONDENT/FIRST CROSS CLAIMANT

WILLIAM LOWE EDGE
SECOND RESPONDENT/SECOND CROSS CLAIMANT

JUDGE:

LINDGREN J

DATE:

16 AUGUST 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. This proceeding is fixed for final hearing for eight days, commencing on 18 September 2006.

2. By motion brought by notice of motion filed on 10 August 2006, the first respondent (“Chansonette”) moves for various orders, the objective of which is to have the proceeding dismissed with costs.  I think that the proceeding should be dismissed in its entirety under O 35A r 3(1) of the Federal Court Rules, with costs. 

3. The proceeding was resolved as between the applicants and the second respondent, Mr Edge.  It remains on foot only as between the applicants and Chansonette.  On 12 July 2006, the solicitor on the record for the applicants wrote to the solicitor on the record for Chansonette, advising that his retainer, and that of counsel for the applicants, had been terminated.

4. There was no appearance for the applicants at the directions hearing on 19 July 2006, or again, on 2 August 2006, or on the hearing of Chansonette’s motion today.

5. When the proceeding was before the Court on 2 August 2006, I ordered that within seven days from that date, the applicants comply with O 45, r 6 by filing a notice of change of solicitor and serving the notice on the other parties and on their former solicitor.  The applicants have not complied with that order.

6. The evidence before me today shows that Mr Miller, the solicitor for Chansonette, has gone to considerable lengths since 2 August 2006 to effect service of my orders of 2 August 2006 and of the notice of motion on the applicants.  A company extract shows that the registered office of the first and third applicants is the office of Bimson Smith Partners Pty Ltd, Level 6, North Tower, 1-5 Railway Street, Chatswood, NSW 2067, and that the sole director of the first applicant is Alan James Joseph Meier (the second applicant – “Mr Meier”), while the directors of the third applicant, Tancot Pty Ltd, are Mr Meier and Victoria Anne Meier.  The address of both Mr and Mrs Meier is given as North Tower, Level 6, 1-5 Railway Street, Chatswood.  On 2 March 2006, the first applicant notified the Australian Investments and Securities Commission of a resolution to change its name from “Needlework Warehouse Pty Limited” to “Unchained Pty Ltd’.

7. The last affidavit sworn by Mr Meier in the proceeding gave his address as 126 Booralie Road, Duffy’s Forest, New South Wales.

8. By courier, a copy of the draft notice of motion and of my orders of 2 August 2006 were delivered to that address.  A person at that address told the courier that Mr Meier no longer resided there.  In addition, on 3 August 2006, copies of the orders and draft notice of motion were sent to all three applicants at the office address at Chatswood. 

9. After sealed copies of the orders were issued in the Registry, they were forwarded also to that Chatswood office address on 9 August 2006. 

10. On 3 August 2006, Mr Miller received an email from Mr Meier.  This was followed by a telephone call from Mr Meier on 4 August 2006.  Mr Meier told Mr Miller that he did not have money to continue with the litigation.

11. On Monday, 7 August 2006, Mr Meier again telephoned Mr Miller and he said that he was moving around at the time and did not know when he would get the documents.  Mr Miller explained that there was an order of the Court requiring that a notice of change of solicitor be filed and that if Mr Meier did not comply with the order, Mr Miller’s instructions were to have the claim dismissed.  Mr Meier said that he knew what Mr Miller was doing but he did not have any money, had had to sell his house, and could not afford solicitors. 

12. He said that the settlement that he had got from Mr Edge had gone in legal fees.  The conversation concluded with Mr Miller informing Mr Meier that copies of the orders and notice of motion had been sent, both to his accountants and to his former solicitor, Mr Wenden, and that that matter was to be in Court again today. 

13. I am satisfied that service has been effected on all three applicants and that they have failed to take the step required in the order of 2 August 2006.

14. The proceeding should be dismissed and the applicants should be ordered to pay Chansonette’s costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:  19 September 2006

Solicitor for the First Respondent:	Mr B J Miller of Garland Hawthorn Brahe
The Applicants did not appear
Date of Hearing:	16 August 2006
Date of Judgment:	16 August 2006