Visa Global Logistics Pty Limited v Connell

[2015] FCCA 459

FEDERAL CIRCUIT COURT OF AUSTRALIA

VISA GLOBAL LOGISTICS PTY LIMITED v CONNELL [2015] FCCA 459

Catchwords:
ADMIRALTY – Default judgment – whether the Court has power to give judgment against the respondent for liquidated damages – whether respondent is in default in failing to comply with orders made by the Court – default judgment entered for applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03B
Admiralty Act 1988 (Cth), ss.4, 9

Applicant: VISA GLOBAL LOGISTICS PTY LIMITED (ACN 002 433 267)

Respondent: RICK CONNELL

File Number: SYG 1631 of 2014

Judgment of: Judge Emmett

Hearing date: 29 January 2015

Date of Last Submission: 29 January 2015

Delivered at: Sydney

Delivered on: 29 January 2015

REPRESENTATION

Counsel for the Applicant: Mr David Parish

Solicitors for the Applicant: HWL Ebsworth

No appearance by or on behalf of the respondent

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1631 of 2014

VISA GLOBAL LOGISTICS PTY LIMITED

Applicant

And

RICK CONNELL

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant seeks default judgment against the respondent in the sum sought in the Statement of Claim, filed on 16 June 2014, pursuant to r.13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth). In order to make the orders sought, the Court must be satisfied that the applicant appears entitled, on the statement of claim, to the relief sought and that the Court is satisfied that it has power to grant that relief. The Court must also be satisfied that the respondent is in default and is aware of the application made today.

2. The applicant is seeking to recover fees in respect of the shipping of a container of furniture by a company of which the respondent was a director, and on the basis that the respondent signed a guarantee in respect of the shipping of that furniture. The applicant read the affidavit of Joseph Hurley, sworn 27 January 2015, which, inter alia, annexed a copy of the guarantee agreement.

3. Mr Parish read the affidavit of Joseph Alan Hurley. Mr Hurley’s affidavit recites the procedural history of this matter before the Court. Mr Hurley also deposes that it is his belief that the goods under the agreement were carried by ship. Mr Hurley annexes various invoices in support of that belief. Mr Hurley also deposes as to the service upon the respondent of various orders made by this Court since the matter was commenced on 16 June 2014.

4. The respondent did not appear at the first return date on 1 July 2014. The matter was then stood over to 23 July 2014, on which occasion again there was no appearance by the respondent. On that occasion I directed that the respondent file and serve any Defence by 6 August and that, in the event that no Defence was filed, the applicant may make an application seeking default judgment, returnable before me on 14 August 2014. The matter was otherwise stood over on that occasion to 14 August.

5. On 7 August 2014 the respondent filed his Defence, which was prepared by Grant Renkema of Alphastream Lawyers. No notice of appearance appears to have been filed by Alphastream Lawyers.

6. On 14 August 2014, the matter was back before me for directions. The applicant mentioned the matter on behalf of both parties and orders were made by me on that occasion that the applicant file and serve any Reply to the Defence that was filed on 28 August 2014. The matter was then stood over for further directions on 20 October.

7. On 20 October 2014, an agent of Alphastream Lawyers appeared on behalf of the respondent and directions were made by me for the filing by both parties of evidence in the matter. The matter was then stood over for further directions on 11 December 2014.

8. There was no appearance by the respondent on 11 December 2014 and no document had been filed by or on behalf of the respondent either in accordance with the directions made by me on 20 October 2014 or otherwise, save for a Notice Withdrawal of Lawyer filed by the respondent’s lawyer on 7 November 2014.

9. On 11 December 2014, I extended time to the respondent to file and serve any evidence by 18 December 2014. I also ordered that in the event that no evidence was filed by the respondent by18 December 2014, the matter may be set down for an undefended final hearing or for default judgment or summary judgment without further notice. The matter was then stood over for further directions on 27 January 2015 at 9.30am, before me.

10. When the matter came before me again on 27 January 2015 there was no appearance for the respondent. I note that Mr Hurley deposed that the respondent was served with a copy of the Orders made by me on 11 December 2014 by way of posting it to the respondent's last known address and delivered on 15 December 2014. In the circumstances I am satisfied that the respondent was aware that an application may be made at any time by the applicant after 18 December 2014 seeking any of default judgment, summary judgment or an undefended final hearing.

11. On 27 January 2015 the applicant foreshadowed the filing of an Application in a Case, seeking default judgment. I made directions that such an application was to be filed and served by close of business on 27 January 2015 and made returnable before me on 29 January 2015 at 10 am for hearing.

12. In the circumstances I am satisfied that the applicant has had several opportunities to participate in this proceeding and has continually failed to comply with orders for the filing and serving of evidence. There has been no communication received by the Court from the respondent since at least 14 August 2014.

13. In circumstances where the respondent has continued to fail to file any evidence in support of any Defence, I am satisfied that the respondent has not satisfied the applicant’s claim. Further, Mr Hurley deposed, in his affidavit, sworn 27 January 2015, that no amount has been paid by the respondent or the primary debtor company in respect of the outstanding amounts.

14. In relation to the issue of the court’s jurisdiction, Mr Parish referred the Court to s.9(1)(a) of the Admiralty Act 1988 (Cth) (“the Admiralty Act”), which confers on this Court jurisdiction in respect of actions in personam, relevantly for a maritime claim.

15. Section 4 of the Admiralty Act 1988 defines a “maritime claim” as including a “claim arising out of an agreement that relates to the carriage of goods… by a ship”.

16. The respondent guaranteed to pay all accounts on behalf of Whitehorse Furniture & Bedding Pty Limited, of which the respondent is a director, pursuant to a customer account application, prepared by the applicant, which provided credit on the freight clearing, transport and warehousing services provided by the applicant. The respondent completed and signed a customer account application on behalf of Whitehorse Furniture & Bedding Pty Ltd. The respondent signed a director’s guarantee, prepared by the applicant, in consideration for the applicant granting credit to Whitehorse Furniture & Bedding Pty Limited in respect of goods being shipped.

17. In the circumstances, I am satisfied that the guarantee is an agreement arising out of an agreement to carry goods by ship. I am therefore satisfied that the matter is a maritime claim for the purposes of s.9 of the Admiralty Act 1988 and that the Court has jurisdiction.

18. The Statement of Claim, filed on 16 June 2014, pleads the relevant agreement and identifies the damage sought by the applicant arising out of unpaid invoices owed by Whitehorse Furniture & Bedding Pty Limited, and guaranteed by the respondent in the sum of $53,778.89.

19. The applicant seeks a further $12,505.73, being a liquidated damages sum, pursuant to section 3 of the Customer Account Application, which provides for a liquidated damages sum of two per cent per month on all outstanding amounts.

20. In the circumstances, default judgment should be entered for the applicant against the respondent in the sum of $66,284.62, pursuant to Part 13, Division 13.1A of the Federal Circuit Court Rules2001 (Cth).

21. The respondent should pay the costs of the applicant of this proceeding, including the Application in a Case filed on 27 January 2015, as agreed, or taxed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  2 March 2015