Neely v Asha Investments (Aust) Pty Ltd
[2006] FMCA 1673
•31 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NEELY v ASHA INVESTMENTS (AUST) PTY LTD & ORS | [2006] FMCA 1673 |
| TRADE PRACTICES – Trade Practices Act ss.51DA and 52 – allegations of misleading and deceptive conduct – no material filed in opposition by respondents – application for summary judgment pursuant to rule 13.07 – application granted. |
| Trade Practices Act 1974 (Cth), ss.51AD, 52 Federal Magistrates Court Rules 2001, rr.13.07, 13.07(1) |
| Applicant: | CYNTHIA BARBARA NEELY |
| First Respondent: | ASHA INVESTMENTS (AUST) PTY LTD |
| Second Respondent: | JOHN LEONARD BURNS |
| Third Respondent: | BEVERLY BURNS |
| File number: | MLG 787 of 2006 |
| Judgment of: | Burchardt FM |
| Hearing date: | 31 October 2006 |
| Date of last submission: | 31 October 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms S. K. Gatford |
| Solicitors for the Applicant: | Madisons |
| The Respondents: | No Appearance |
THE COURT ORDERS AND DECLARES THAT:
The First Respondent has contravened the provisions of sections 51AD and 52 of the Trade Practices Act 1974 (Cth).
The Second and Third Respondents were each involved in the contravention by the First Respondent of sections 51AD and 52 of the Trade Practices Act 1974 (Cth).
The Respondents pay the costs of the Applicant’s application dated 20 October 2006 and of the proceeding.
The assessment of the amount of loss and damage recoverable by the Applicant under section 82 of the Trade Practices Act 1974 (Cth) as a result of the Respondents’ conduct be referred to a Registrar under Rule 18.01 of the Federal Magistrates Court Rules 2001.
The Applicant file and serve any affidavit or affidavits on which she intends to rely as to damages on or before 4pm on 14 November 2006.
The Respondents file and serve any affidavit or affidavits on which they intend to rely as to damages on or before 4pm on 28 November 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 787 of 2006
| CYNTHIA BARBARA NEELY |
Applicant
And
| ASHA INVESTMENTS (AUST) PTY LTD |
First Respondent
| JOHN LEONARD BURNS |
Second Respondent
| BEVERLY BURNS |
Third Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
By an application filed with the Court on 21 June 2006, the applicant sought declaratory relief to the effect that the respondents had in trade or commerce contravened the provisions of s.51AD and s.52 of the Trade Practices Act 1974. That application was supported by an affidavit sworn by the applicant on 19 June 2006 and filed in this Court on 21 June 2006.
It is not necessary to traverse the full history set out in that affidavit which runs to some 13 pages and 37 paragraphs which was accompanied by voluminous documentation by way of exhibits. It is sufficient to record that having read that affidavit, I am satisfied that were the facts in it to be accepted, the applicant would have established a prima facie case against the respondents of the sort indicated in the original application.
On 26 July 2006, the respondents filed a response which stated that the final orders sought were that the Court not make the declarations claimed by the applicant but that damages be determined by the Court if the applicant were otherwise to be successful. On 28 July 2006, Connolly FM made a number of orders in this proceeding, the first of which was that “the proceedings shall continue on pleadings”. His Honour ordered a timetable for the service of a statement of claim, response, defence, affidavits in opposition and the like but more particularly ordered that there be mediation held by 19 September 2006 and that the matter be brought back on this day for further directions.
By a notice dated 29 August 2006, Law 554, the then solicitors for the respondents, gave notice of practitioners ceasing to act. On a date which is attested as having been 4 September 2006, which bears a processing stamp of 6 September 2006 from this Court, the applicant filed an extensive statement of claim in which the cause of action was more particularly pleaded. That statement of claim was about a month late but I suspect that that was because the parties were turning their minds in any event to mediation which occurred shortly thereafter as I understand it. The mediation took place on 7 September 2006.
Stephen Allan Dunn, the solicitor having carriage of the matter on behalf of the applicant, has deposed to the procedural history of the matter in an affidavit sworn on 20 October 2006. He deposes that as at that date the respondents had not served any response, defence and/or affidavits in opposition pursuant to the orders of Connolly FM in July 2006. He also deposes that he believes that the respondents had no answer to the applicant's claim. That affidavit was sworn in support of an application for summary judgment filed on 23 October 2006 and, according to the affidavit of service of Lindsey Willmott, the application and affidavit in support were served on the three respondents’ on 24 October 2006.
It should be noted that the affidavit of service erroneously refers to service of a Federal Court application, but it is plain from the annexures to the affidavit of service that what was served was the application in this Court and before the Court this day, that was filed on 23 October 2006.
The respondents’ have not attended the hearing today, although the matter has been called at 9.35 am. The application is made pursuant to r.13.07 of the Federal Magistrates Court Rules 2001 (“the Rules”). I am satisfied that the opposing party has no reasonable prospect of successfully defending the claim. I would also be satisfied that there is evidence before the Court by a responsible person namely, Mr. Dunn - that the opposing party has no answer to the claim. Indeed, I would also be satisfied working, as it were, backwards in the rule that in relation to the applicant's claim there is evidence of facts upon which the applicant's claim is based. In other words, the component parts required to be satisfied by r.13.07(1) of the Rules are all satisfied.
The affidavit of the applicant filed at the commencement of the proceedings provides a factual basis to the Court's satisfaction to the required degree that the facts are made out as asserted, and I am further satisfied in the relevant circumstances that there is no defence to this claim.
In these circumstances, I have therefore been disposed to make the orders sought by counsel for the applicant which effectively give declaratory relief to the applicant and refer the assessment of damages to a Registrar of this Court.
I certify that the preceding Nine (9) paragraphs are a true copy of the reasons for judgment of Burchardt FM.
Associate: Brooke Evans
Date: 31 October 2006
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