FEDERAL COURT OF AUSTRALIA
Ross v Cotter [2015] FCA 310
Citation: Ross v Cotter [2015] FCA 310 Parties: DAVID ROSS, SHAHIN HUSSAIN AND RICHARD ALBARRAN AS JOINT AND SEVERAL RECEIVERS OF ANC TRANSPORT PTY LTD (RECEIVERS APPOINTED) ACN 137 400 081 v NORMAN COTTER and ANDREA COTTER File number: QUD 684 of 2014 Judge: REEVES J Date of judgment: 2 April 2015 Catchwords: PRACTICE AND PROCEDURE – application for deemed service – application for default judgment – where failure to attend Court on return date – where failure to file notice of address for service – whether utility in making declarations Legislation: Corporations Act 2001 (Cth)
Federal Court of Australia Act 1976 (Cth)Federal Court Rules 2011 (Cth)
Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665; [2006] FCA 1427
Australian Competition and Consumer Commission v EDirect Pty Ltd (in liq) (2012) 206 FCR 160; [2012] FCA 976
Australian Competition and Consumer Commission v Grove & Edgar Pty Ltd [2008] FCA 1956
Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286
Chanel Limited v Ayad [2005] FCA 820
Forster v Jododex Australia Pty Limited (1972) 127 CLR 421
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89
Welsh v Digilin Pty Ltd [2008] FCAFC 149
Yeo v Damos Earthmoving Pty Ltd, Re Beachwood Developments Pty Ltd (in liq) [2011] FCA 1129Date of hearing: 12 March 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for the Applicants: MK Callanan Solicitor for the Applicants: J Waterman of Taylor David Lawyers Solicitor for the First and Second Respondents: The First and Second Respondents did not appear
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 684 of 2014
BETWEEN: DAVID ROSS, SHAHIN HUSSAIN AND RICHARD ALBARRAN AS JOINT AND SEVERAL RECEIVERS OF ANC TRANSPORT PTY LTD (RECEIVERS APPOINTED)ACN 137 400 081
ApplicantsAND: NORMAN COTTER
First RespondentANDREA COTTER
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
2 APRIL 2015
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The first and second respondents pay the applicants the sum of $94,995.26.
2.The first and second respondents pay the applicants’ costs of the proceeding fixed in the sum of $8,252.20.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 684 of 2014
BETWEEN: DAVID ROSS, SHAHIN HUSSAIN AND RICHARD ALBARRAN AS JOINT AND SEVERAL RECEIVERS OF ANC TRANSPORT PTY LTD (RECEIVERS APPOINTED) ACN 137 400 081
ApplicantsAND: NORMAN COTTER
First RespondentANDREA COTTER
Second Respondent
JUDGE:
REEVES J
DATE:
2 APRIL 2015
PLACE:
BRISBANE
REASONS FOR JUDGMENT
DEEMED SERVICE ON MR COTTER
Rule 10.23 of the Federal Court Rules 2011 (Cth) (the Rules) provides…
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Details
- AGLC
- Ross v Cotter [2015] FCA 310
- Case
- [2015] FCA 310
- Decision Date
CaseChat Overview and Summary
In the case of Ross v Cotter, the applicants, Ross and Waterman, sought an order for deemed service of the originating documents and a default judgment against the respondents, Mr and Mrs Cotter. The application was heard by the Federal Court of Australia. The applicants argued that they had met the criteria for deemed service and default judgment under the Federal Court Rules 2011. The respondents did not appear on the return date for the directions hearing and did not file a notice of address for service, leading the applicants to seek a default judgment against them.
The legal issues the court had to decide were whether the applicants had met the criteria for deemed service and default judgment under the Federal Court Rules 2011. The applicants argued that the respondents' failure to attend the directions hearing and file a notice of address for service constituted a default under rr 5.01 and 5.02 of the Rules. The court had to determine if the applicants' claims met the criteria for a default judgment under rr 5.22 and 5.23(2) of the Rules.
The court found that the applicants had met both criteria for deemed service and default judgment. The court ordered that the originating documents were taken to have been served on the respondents by no later than 11 February 2015. The court found that the respondents' failure to attend the directions hearing and file a notice of address for service constituted a default under rr 5.01 and 5.02 of the Rules. The court granted the applicants' application for a default judgment against the respondents, ordering them to pay the applicants' costs and a specified sum of money.
The legal issues the court had to decide were whether the applicants had met the criteria for deemed service and default judgment under the Federal Court Rules 2011. The applicants argued that the respondents' failure to attend the directions hearing and file a notice of address for service constituted a default under rr 5.01 and 5.02 of the Rules. The court had to determine if the applicants' claims met the criteria for a default judgment under rr 5.22 and 5.23(2) of the Rules.
The court found that the applicants had met both criteria for deemed service and default judgment. The court ordered that the originating documents were taken to have been served on the respondents by no later than 11 February 2015. The court found that the respondents' failure to attend the directions hearing and file a notice of address for service constituted a default under rr 5.01 and 5.02 of the Rules. The court granted the applicants' application for a default judgment against the respondents, ordering them to pay the applicants' costs and a specified sum of money.
Orders
Orders of the court
1. The first and second respondents pay the applicants the sum of $94,995.26.
2. The first and second respondents pay the applicants’ costs of the proceeding fixed in the sum of $8,252.20.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
For these reasons, I consider the applicants have met both of the criteria set out in r 10.23 and I will therefore order that the originating application filed 18 December 2014 and the affidavit of Mr Ross sworn 15 December 2014 are taken to have been served on the first respondent, Mr Cotter, by no later than 11 February 2015.DEFAULT JUDGMENT Following on from the above order, the applicants have applied under rr 5.22 and 5.23(2) of the Rules for default judgment against both Mr and Mrs Cotter. Relevantly, r 5.22 of the Rules provides that:A party is in default if the party fails to:(a)do an act required to be done, or to do an act in the time required, by these Rules; or(b)comply with an order of the Court; or(c)attend a hearing in the proceeding; or(d)prosecute or defend the proceeding with due diligence. The grounds of default relied upon by the applicants are those prescribed in rr 5.01 and 5.02 of the Rules, as follows:5.01 Parties to attend Court on return dateA party, or the party’s lawyer, must attend the Court on the return date fixed in the originating application.…5.02 Parties to file notice of address for service before return dateA respondent who has been served with an originating application must file a notice of address for service, in accordance with Form 10, before the return date fixed in the originating application.(Emphasis in original) The defaulting conduct of Mr and Mrs Cotter, relied upon by the applicants, is as follows:(a)the failure by Mrs Cotter to appear on the return date fixed for the first directions hearing in the proceeding, 12 February 2015, in default of r 5.01 of the Rules;(b)the failure by Mrs Cotter to file a notice of address for service before the abovementioned return date, in default of r 5.02 of the Rules;(c)the failure by Mrs Cotter to appear at the adjourned directions hearing in the proceeding on 12 March 2015, in further default of r 5.01 of the Rules; and(d)given that Mr Cotter is taken to have been served with the originating documents by no later than 11 February 2015 (see at [6] above), the failure by him to appear at either of the directions hearings described above, or to file a notice of address for service before the return date fixed for either, or both, of those directions hearings, in default of rr 5.01 and 5.02, respectively. The following are the circumstances in which this conduct occurred. On 18 December 2014, the applicants commenced this proceeding by filing the originating documents. As I have already recorded above: Mr and Mrs Cotter are husband and wife; Mrs Cotter was served personally with the originating documents on 19 January 2015; but attempts to serve Mr Cotter were unsuccessful. Accordingly, on 12 March 2015, I made an order under r 10.23 of the Rules for deemed service of the originating documents on Mr Cotter: see at [6] above. During the period from 28 January 2015 to 12 March 2015, the applicants’ solicitor, Mr Waterman, made numerous unsuccessful efforts to elicit a response from Mr and Mrs Cotter regarding the applicants’ claims in this proceeding. Those attempts included the following. By email on 28 January 2015, Mr Waterman emailed the originating documents to Mr and Mrs Cotter and notified them that a directions hearing was to occur in the proceeding on 12 February 2015. In the same email, Mr Waterman put Mr and Mrs Cotter on notice that the applicants would be seeking to have judgment entered against them at that hearing.
Ratio Decidendi
Legal Principle Established
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