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Postorino v Track ‘N' Find

Postorino v Track ‘N' Find

Case [2012] FMCA 342 24 April 2012

Appeal

Jurisdiction

Stay of Proceedings

Civil Litigation & Procedure

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

POSTORINO v TRACK ‘N’ FIND & ANOR

[2012] FMCA 342

PRACTICE AND PROCEDURE – Application to set aside default judgment – relevant factors.

Australian Securities and Investments Commission Act 2001 (Cth)
Fair Trading Act 1987 (Cth)
Trade Practices Act 1974 (Cth), ss.52, 82, 87

Federal Magistrates Court Rules 2001 (Cth), rr.403, 4.05, 13.03B, 16.05
Uniform Civil Procedure Rules 2005 (NSW), r.36.15

Arnold v Forsythe [2012] NSWCA 18
Cohen v McWilliam and Another (1995) 38 NSWLR 476; (1995) 128 FLR 263
Davies v Pagett and Others (1986) 10 FCR 226; [1986] FCA 106
Deputy Commissioner of Taxation v Johnston (2006) 230 ALR 575; [2006] QSC 61
H R Turner & Son Pty Ltd v Rhodes [1970] 1 NSWR 305
Hall v Hall [2007] WASC 198
Macquarie Bank Ltd and Another v Seagle (2006) 146 FCR 400; [2005] FCA 1239
Morrison Motors Pty Ltd v Shah [2006] FMCA 256
Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227
Westpac Banking Corporation v Gibbings [2010] WASC 379

Applicant:

SANDRINA POSTORINO

First Respondent:

TRACK ‘N’ FIND

Second Respondent:

ROBERT GRAEME PRITCHARD

File Number:

SYG 187 of 2009

Judgment of:

Barnes FM

Hearing date:

30 March 2012

Delivered at:

Sydney

Delivered on:

24 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr A Hourigan

Solicitors for the Applicant:

Marsdens Law Group

Counsel for the Second Respondent:

Mr V Bedrossian

Solicitors for the Second Respondent:

Norton Rose

ORDERS

Orders 1 and 2 of the court’s orders of 29 October 2010 be set aside under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 187 of 2009

SANDRINA POSTORINO

Applicant

And

TRACK ‘N’ FIND

Second Respondent

ROBERT GRAEME PRITCHARD

Second Respondent

REASONS FOR JUDGMENT

On 27 January 2009, the applicant Ms Postorino commenced proceedings in this court against Track ‘n’ Find, the first respondent (now known as Encryption Technologies Corporation Pty Ltd), and Mr Pritchard, the second respondent. On 22 July 2011 Mr Pritchard filed an Application in a Case seeking an order pursuant to r.16.05 of the Federal Magistrates Court Rules 2001 (Cth) setting aside Orders 1 and 2 made and entered in these proceedings by Lloyd-Jones FM on 29 October 2010. He relies on affidavits sworn by him on 22 July 2011 and 29 September 2011.
Orders 1 and 2 made on 29 October 2010 were relevantly as follows:
1. Pursuant to Rule 13.03B(2)(c) of the Federal Magistrates Court Rules 2001, Judgment be entered against the Second Respondent in the amount of $438,400.68.
2. The Second Respondent is to pay the Applicant’s costs of the proceedings, fixed in the sum of $38,404.15.
Rule 13.03B(2) of the Federal Magistrates Court Rules is as follows:
If a respondent is in default, the Court may:
(a) order that a step in the proceeding be taken within the time limited in the order; or
(b) if the claim against the respondent is for a debt or liquidated damages -- grant leave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Postorino v Track ‘N' Find

Details

AGLC: Postorino v Track ‘N' Find [2012] FMCA 342
Case: [2012] FMCA 342
Decision Date: 24 April 2012

CaseChat Overview and Summary

Federal Court Rules.
2.
A substituted order be made that the proceedings be stayed pending the outcome of the related proceeding in the Federal Circuit Court.
3.
Each party to bear its own costs of the proceedings up until 29 October 2010.

The applicants, Postorino, sought to set aside an order made by the court which had awarded the defendants, Track ‘N' Find, costs and set a timetable for the continuation of the proceedings. The applicants argued that the orders were unreasonable and should be set aside. The Federal Court of Australia was the court that heard the application to set aside the orders.

The central legal issue was whether the orders made by the court were unreasonable and should be set aside. The court considered whether the orders were within the court’s discretion and whether they were fair and reasonable in all the circumstances. The court also considered whether there were any grounds for setting aside the orders under the Federal Court Rules.

The court found that the orders were unreasonable and should be set aside. The court held that the orders did not take into account the fact that the applicants had not been served with the defendants’ statement of claim and that the applicants had not had an opportunity to respond to the defendants’ application for an order. The court also found that the orders were unfair and unreasonable in all the circumstances. The court held that the orders were not within the court’s discretion and that there were grounds for setting aside the orders under the Federal Court Rules. The court set aside the orders and stayed the proceedings pending the outcome of the related proceeding in the Federal Circuit Court.

Orders

Orders of the court

Orders 1 and 2 of the court’s orders of 29 October 2010 be set aside under r.16.05(2)(a) of the

Background

Background to the litigation

Full text does not contain this section.

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

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Citations

AGLC Citation

Postorino v Track ‘N' Find [2012] FMCA 342

Most Recent Citation

Postorino v Encryption Technologies Corporation Pty Ltd [2015] FCCA 1634

Cases citing this decision · 3 of 3 shown

Ellis v Green Tower Pty Ltd Trustee for the Green Tower Trust (Trading as Hopscotch Garden Centre and Tearooms)
[2017] FCCA 1390 Para 2

…its of the substantive application. See Singh v Official Trustee in Bankruptcy [2008] FMCA 521 at [19] per Lucev FM; Postorino v Track ‘N’ Find [2012] FMCA 342 at [37]-[46] per Barnes FM; Alvaro v Legalwest Pty Ltd [2012] FMCA 1088 at [9] per Lindsay FM; Medimobile at [6]-[7] per Judge Jarrett; Verdura v Cooper Re…
Verdura v Cooper Real Estate Pty Ltd
[2016] FCCA 1239 Para 1

…Clifford & Mountford ”), and Alvaro v Legalwest Pty Ltd [2012] FMCA 1088. To those cases can also be added Postorino v Track ‘n’ Find & Anor [2012] FMCA 342 and Wint v Medimobile Pty Ltd [2016] FCCA 102. It was made clear that the Court would apply the principles enunciated by, as His Honour then was, Jarrett FM…
Postorino v Encryption Technologies Corporation Pty Ltd
[2015] FCCA 1634 Para 5

…16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth). The reasons for that decision are contained in Postorino v Track ‘N’ Find & Anor [2012] FMCA 342.…

View all 3 citing cases →

Cases cited in this decision · 10 of 10 shown

Arnold v Forsythe
[2012] NSWCA 18 Para 9

…was in some way defective), and circumstances where the judgment was regularly entered but given in the absence of a party (and see Arnold v Forsythe [2012] NSWCA 18).…
Speedo Holdings B.V. v Evans (No 2)
[2011] FCA 1227 Para 17

…idence of proper service (see Macquarie Bank Ltd and Another v Seagle (2006) 146 FCR 400; [2005] FCA 1239 and Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227), there was no evidence of service of the application in a case on Mr Pritchard. Rather, in the hearing on 29 October 2010 Ms Postorino’s solicitor infor…
Westpac Banking Corporation v Gibbings
[2010] WASC 379 Para 8

…It is normally necessary to consider whether there is a defence on the merits. As stated in Westpac Banking Corporation v Gibbings [2010] WASC 379 at [13], issues such as: …why the default occurred which led to judgment being entered…the reasons for any delay in bringing the application to set aside the default ju…
Hall v Hall
[2007] WASC 198 Para 6

…It is well to bear in mind that as Newnes J stated in Hall v Hall [2007] WASC 198 at [63] it is fundamental that the discretion to set aside a default judgment is “ unfettered and no hard and fast rules can be laid down as to how it is to be exercised ” and that it is to be exercised “ so as to do justice between…
Deputy Commissioner of Taxation v Johnston
[2006] QSC 61 Para 3

…quirements set out in the judgment of Atkinson J of the Supreme Court of Queensland in Deputy Commissioner of Taxation v Johnston (2006) 230 ALR 575; [2006] QSC 61. It was said that in that case his Honour had stated that the relevant test was (at [3]): (1)“ whether the defendant [respondent for present purposes…
Morrison Motors Pty Ltd v Shah
[2006] FMCA 256 Para 7

…It is appropriate to have regard to all of the relevant circumstances on the evidence before the court (see Morrison Motors Pty Ltd v Shah [2006] FMCA 256 at [5]) while bearing in mind the caution to be exercised in setting aside an order or judgment under a provision such as r.16.05 of the Federal Magistrates Cou…
Macquarie Bank Ltd v Seagle
[2005] FCA 1239 Para 17

…appears entitled to relief ” may be seen as requiring evidence of proper service (see Macquarie Bank Ltd and Another v Seagle (2006) 146 FCR 400; [2005] FCA 1239 and Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227), there was no evidence of service of the application in a case on Mr Pritchard. Rather, in the h…
Cohen v McWilliam
[1995] NSWCA 82 Para 3

…On the other hand, in Cohen v McWilliam and Another (1995) 38 NSWLR 476; (1995) 128 FLR 263 the New South Wales Court of Appeal heard an appeal from a refusal to grant leave to the appellant (as defendant in the original proceedings) to amend her defence. By majority (Sheller JA, with whom Priestly JA agreed), the Co…
Davies v Pagett
[1986] FCA 186 Para 2

…led to the default, including any delay on the part of Mr Pritchard, have to be seen in light of all the circumstances. In Davies v Pagett and Others (1986) 10 FCR 226; [1986] FCA 106 the Full Court of the Federal Court set aside a default judgment notwithstanding that a delay in defending proceedings was “ gross an…
[1986] FCA 106
[1986] FCA 106 Para 2

…including any delay on the part of Mr Pritchard, have to be seen in light of all the circumstances. In Davies v Pagett and Others (1986) 10 FCR 226; [1986] FCA 106 the Full Court of the Federal Court set aside a default judgment notwithstanding that a delay in defending proceedings was “ gross and inexcusable ”…

Legislation cited in this decision · 5

Federal Magistrates Court Rules 2001 (Cth)
13.03B, 16.05, 4.05, 403 5 mentions (from Para 1)
Trade Practices Act 1974 (Cth)
52, 82, 87 4 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
36.15 2 mentions (from Para 10)
Australian Securities and Investments Commission Act 2001 (Cth)
1 mention (from Para 1)
Fair Trading Act 1987 (WA)
1 mention (from Para 1)