Stuart Alexander and Co Pty Ltd v Trans-Atlantic (SA) (Pty) Ltd

[2005] FCA 490

FEDERAL COURT OF AUSTRALIA

Stuart Alexander & Co Pty Ltd v Trans-Atlantic (SA) (Pty) Ltd & Ors
[2005] FCA 490

PRACTICE & PROCEDURE – motion for summary judgment.

Federal Court Rules O 35A r 3

STUART ALEXANDER & CO PTY LTD v TRANS-ATLANTIC (SA) (PTY) LTD & ORS
VID272 OF 2004

CRENNAN J
27 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 272 OF 2004

BETWEEN:	Stuart Alexander & Co Pty Ltd PLAINTIFF
AND:	Trans-Atlantic (SA) Pty Ltd & Ors DEFENDANT
JUDGE:	CRENNAN J
DATE OF ORDER:	27 April 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        There be summary judgment for the plaintiff.

2.        The defendant to pay the plaintiff’s costs fixed in the sum of $80,172.34, together with interest to be calculated in accordance with the Rules.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 272 OF 2004

BETWEEN:	Stuart Alexander & Co Pty Ltd PLAINTIFF
AND:	Trans-Atlantic (SA) Pty Ltd & Ors DEFENDANT

JUDGE:	CRENNAN J
DATE:	27 April 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. By notice of motion dated 17 February 2005 the plaintiff sought summary judgment under O 35A r 3 of the Federal Court Rules (‘Rules’) against the respondent, being a rule enabling the making of orders on default.  

2. The plaintiff filed an application claiming damages for breach of contract and/or duty in and about the loading, handling, custody, care and discharge of the plaintiff’s cargo of sugar confectionery and the carriage of it from Johannesburg, South Africa to Durban, South Africa and from Durban to Sydney by boat under a bill of lading issued at Johannesburg on or about 17 April 2003.  The first and second defendants are companies incorporated in South Africa.  Accordingly, leave was granted to the plaintiff to serve originating process on the first and second defendants outside of the Commonwealth in accordance with Division 3 of O 8 of the Rules.

3. On 9 February 2005 the Court ordered that the plaintiff file a notice of motion seeking summary judgment together with any supporting affidavits by 23 February 2005.  O 35A r 3(2) provides in the relevant part that:

   ‘If the respondent is in default, the Court may:
   (a) …
   (b) if the claim against the respondent is for a debt or liquidated damages – grant leave to the applicant to enter judgment against the respondent for debt or liquidated damages and, if appropriate:

   (i)costs:

   Ain a sum to be fixed by the court; or

   Bto be taxed; and

   (ii)interest; or

   (iii)…’

4. The applicant filed an affidavit of service on 17 February 2005.  Further, the plaintiff filed an affidavit of Andrew Dean Tulloch sworn on 26 April 2005 setting out the particulars of the claim, which included what is styled the particulars of loss and damage, satisfying the provisions of r 3(3)(a)(ii).  The plaintiff has complied with the Rules in relation to O 35A. 

5. Under O 35A r3 of the Rules the court will give summary judgment for the plaintiff for the sum of $80,172.34, together with interest to be calculated in accordance with the Rules.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.

Associate:

Dated:             27 April 2005

Counsel for thePlaintiff:	Naomi Miller
Solicitor for the Plaintiff:	Phillips Fox
Counsel for the Defendant:	No appearance
Solicitor for the Defendant:	No appearance
Date of Hearing:	27 April 2005
Date of Judgment:	27 April 2005