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

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.

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:

A       in a sum to be fixed by the court; or

B        to 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.

Associate:

Dated:              27 April 2005