The Life Like Touring (Australia) Pty Ltd v Joe Gallagher Entertainments Intl Limited

[2018] NSWSC 1199

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	The Life Like Touring (Australia) Pty Ltd v Joe Gallagher Entertainments Intl Limited [2018] NSWSC 1199
Hearing dates:	26 July 2018
Date of orders:	26 July 2018
Decision date:	26 July 2018
Jurisdiction:	Equity - Duty List
Before:	Parker J
Decision:	Order pursuant to rule 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) that the plaintiff be granted leave to proceed against the defendant.
Catchwords:	PRACTICE AND PROCEDURE – jurisdiction – originating process served outside of jurisdiction – no appearance by defendant – leave to proceed – leave granted in circumstances where further time is allowed for the plaintiff to notify defendant of proposed motion for default judgment
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), s 11.8AA, sch 6(b)(iv)
Category:	Procedural and other rulings
Parties:	The Life Like Touring (Australia) Pty Ltd (Plaintiff) Joe Gallagher Entertainments Intl Limited (Defendant)
Representation:	Counsel:   Solicitors: William James Law (Plaintiff)
File Number(s):	2018/107215
Publication restriction:	Nil

Judgment – EX TEMPORE

1. This is an application by the plaintiff for leave to proceed against a defendant located outside the jurisdiction and, if such leave is granted, for the entry of default judgment.

2. The claim arises out of a written contract between the parties concerning the production of a live show known as “Paw Patrol Race to the Rescue”, which was to be presented in Glasgow, Belfast and Dublin in September 2017. The contract bears the date 1 June 2017. It names the plaintiff as the “producer” responsible for performing the show, and the other party of the contract is the “promoter”, identified in typewriting as "Joe Gallagher Entertainments" but with a handwritten addition of "Int. Ltd".

3. The document was signed by Joe Gallagher on 19 June on behalf of the promoter. Evidence before me shows that on 19 June, the date Mr Gallagher signed the contract, application was made for the incorporation of the defendant company under the name "Joe Gallagher Entertainments Intl Limited". The company was formally incorporated the following day, on 20 June. The contract was subsequently signed on behalf of the plaintiff on 7 July.

4. At this stage I have not gone into the plaintiff's claim in any detail, but I assume it is a claim for moneys due under the contract, or moneys allegedly due under the contract. Three liquidated sums are claimed, one in Great British pounds, another in Australian dollars and a third in Euros.

5. The statement of claim was filed in this Court on 6 April this year. The statement of claim, together with a covering letter dated 23 April 2018, was delivered by a process server to an address in Belfast, which is the registered office of the defendant, and left in the mailbox at that address (which it appears may be a private residence) at 3.58pm on 30 April.

6. On 8 May Mr Gallagher sent an email to representatives of the plaintiffs and their solicitors in which he stated that he had received the statement of claim on 4 May when he returned home (presumably having been away from home between 30 April, when the documents were delivered, and 4 May). The email referred in broad terms to a dispute about the way in which the contract had been performed. The email went on to say that a defence and a claim for damages were currently being filed in the High Court of Justice in Belfast and that this Court was not the appropriate forum to deal with the dispute.

7. On 13 June a Northern Ireland law firm known as Hampson Harvey wrote to the solicitors for the plaintiff stating that they were instructed by the defendant in the matter, and enclosing an affidavit which was said to have been filed with the Court. The letter invited the solicitors for the plaintiff to identify lawyers in Northern Ireland who could accept service of the High Court proceedings in Northern Ireland on the plaintiff's behalf.

8. Mr Gallagher’s affidavit, which was headed in the proceedings in this Court complained in general terms about the way in which the show was performed. It also stated that the defendant disputed the jurisdiction of this Court to deal with the plaintiff's proceedings "given that no legally binding agreement exists between the parties".

9. Despite the statement in the covering letter from Hampson Harvey, the affidavit has not been filed with this Court, nor has any application been made to set aside or stay the proceedings on the ground of forum non conveniens.

10. I think it is clear that this Court does have jurisdiction to entertain the proceedings. The contract contains a clause providing that it is to be construed, interpreted and take effect in accordance with the laws of New South Wales and submitting to the non-exclusive jurisdiction of this Court. Under Uniform Civil Procedure Rules 2005 (NSW), sch 6(b)(iv), an originating process may be served outside of Australia without prior leave in these circumstances.

11. Although Mr Gallagher's affidavit stated that he had not received an executed copy of the agreement as signed on behalf of the plaintiff, it acknowledged that he had signed the agreement. The defendant's liability under the agreement is not dependent upon being provided with a copy as signed by the plaintiff. In any event, the evidence before me establishes that Mr Gallagher was indeed provided with a copy of the agreement as signed by the plaintiff.

12. The fact that this Court has jurisdiction does not necessarily mean that the jurisdiction should be exercised. If there is a dispute between the parties about performance of the contract, then I would expect that any such dispute should be dealt with in the same proceedings as the proceedings in which the plaintiff claims the amounts which it says are due. It would be open to the defendant to make an application to have the proceedings stayed in favour of proceedings in Northern Ireland, although at this stage I say nothing about whether such an application would be successful.

13. Some time has passed since the Statement of Claim was served and the solicitors became involved and, as I have mentioned, no formal application has been made to this Court, nor have any documents been filed on behalf of the defendant. The defendant is, in my view, formally in default since it is clear that the Statement of Claim, whether validly served or not, was received by Mr Gallagher on behalf of the defendant on 4 May and the 42 day period within which a defence must be entered has passed since then.

14. Although no formal application has been made to this Court, the evidence before me shows that there have been continued negotiations involving direct communications between the plaintiff, on the one hand, and the solicitors appointed by the defendant on the other.

15. Most recently, at 6.01 pm on 24 July, two days ago, a representative of the plaintiff wrote to Hampson Harvey declining to comment on allegations made in a letter from Hampson Harvey of 10 July concerning alleged misconduct at a hotel in Glasgow by the crew retained for the purposes of the tour. The letter went on to point out that the matter was back in court today and that, should the defendant wish to discuss an out of court settlement, representatives of the plaintiff were available to have a discussion directly, but only until close of business on Wednesday 25 July, that is yesterday. On the evidence before me that deadline passed without any further response.

16. I am reluctant in the circumstances to proceed precipitately to hearing the application for default judgment. In my view, such applications should not be used as a negotiating tactic in cases where the defaulting party is represented by lawyers until and unless it has become reasonably clear that the proceedings will not, after all, be defended. While I appreciate that the time limit stated in the plaintiff's letter has passed, it was a very short time limit and it has only just passed.

17. The Court is not able to proceed to dealing with the default judgment unless it first grants leave to the plaintiff to do so under UCPR, r 11.8AA. As I am satisfied that the Court has jurisdiction, that the statement of claim was served and came to Mr Gallagher's attention by 4 May at the latest, and that no formal step has been taken by the defendant to defend the proceedings or to seek to challenge the exercise of the Court's jurisdiction, I consider it appropriate to grant the leave necessary under that rule. But I will allow a short period of time in which the defendant's solicitors can be notified that I have granted leave and intend to proceed, unless some application is made beforehand, to hearing the plaintiff's application for default judgment. This will give the defendant's representatives an opportunity, should they consider it appropriate, to make an application to the Court to decline to exercise its jurisdiction (in favour of proceedings in Northern Ireland) or otherwise to oppose the default judgment application.

18. For these reasons the orders of the Court are:

1. Order pursuant to rule 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) that the plaintiff be granted leave to proceed against the defendant.

2.   Adjourn the further hearing of the plaintiff's notice of motion dated 12 July 2018 to 3 August 2018 in the Duty List.

3.   Direct that the plaintiff notify the solicitors retained by the defendant of these orders and provide a copy to those solicitors of these reasons for judgment when they become available.

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Amendments

03 August 2018 - amend legislation reference

Decision last updated: 03 August 2018