Sunro Seafood Sales P/L v Kerville, P.K.W

[1993] FCA 797

JUDGb!ENT No. ........ ........ .. ........ .... 797 1 9 3

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NOT SUITABLE FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

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NEW SOUTH WALES DISTRICT REGISTRY ) NG 783 of 1992

)

GENERAL DIVISION )

BETWEEN:  SUNRO SEAFOOD SALES PTY LIMITED

Applicant

AND:  PETER KEITH WILLIAM KERVILLE

First Respondent

ANDREW LESTER KERVILLE

Second Respondent

STIPHOUT ENTERPRISES PTY LTD

Third Respondent

CORAM: Burchett J.
PLACE: Sydney

DATE : 3 November 1993

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

In this matter the applicant relies on Order 10, rule 4, dealing with summary disposal, and also on Order 10 rule 7, dealing with default in compliance with directions of the Court, and on each basis moves for an order giving judgment for the applicant against the first, second and third respondents for damages to be assessed and costs. It is clear that there has been default. It is clear that ample notice has been given, and that none of the respondents is showing

any desire to defend the proceedings.

The difficulty which has arisen is that the statement of claim contains a number of alternatives, and they are inconsistent alternatives. It alleges, in effect, that goods were sold and delivered to the company Stiphout Enterprises Pty Limited (Stiphout), the third respondent. It also makes a claim that the contract under which the goods were delivered was purportedly entered into, on behalf of a non-existent company, by the other respondents. Those two claims obviously cannot stand together.

Taking the matters pleaded in the statement of claim at face value, it would appear to me likely - but I have not had the benefit of any evidence from any person directly concerned with the transaction - that in fact the contract was indeed with Stiphout, and that there was no question of a non- existent company, but only of a failure by the individuals to fulfil the terms of an arrangement under which it was contemplated that Stiphout Enterprises Pty Limited would change its name to Taipak Seafood Imports Pty Limited.

In the circumstances, it seems to me appropriate upon the allegations against the company Stiphout Enterprises Pty Limited, and in view of its failure to appear or to comply with directions, to enter judgment against that company for the sum claimed against it, which is the total of two invoices, one for $114,053.80 and the other for $50,839.40, which according to my arithmetic comes to a total of $164,893.20, and I do enter judgment against that company for that amount, and order that it pay that sum to the applicant and that it pay the applicant's costs.

I make no order against the individual respondents Peter Keith William Kerville and Andrew Lester Kerville. I note that it appears there may be a possibility that some amount of damages might be able to be established against them for failure to comply fully with the terms of the agreement pleaded against them; but at the moment no such damages at all have been shown, and it may well be that no damages could be shown to have flowed from any such breach of agreement.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein

of his Honour Mr Justice Burchett.	6
Associate:	%"(l~"cw.Q-u

Date: 5 November 1993

Solicitor for the Applicant:  Mrs D. Karageorge of
Messrs Karageorge &

No appearance on behalf of the Respondents. Co.

Date of hearing:  3 November 1993