FEDERAL COURT OF AUSTRALIA

Hoop & Javelin Holdings Limited v BT Projects Pty Limited (In Liq) (No 2) [2010] FCA 190

THE COURT ORDERS THAT:

1.                  On the question of the default judgement against the second respondent:

1.1              Leave is granted to enter judgement against the second respondent for the debt and for liquidated damages.

1.2              In terms of order 35A, rule 3(2)(b)(i) and (ii), the applicant is entitled to costs in a sum fixed by the Court and to interest (the Court notes that this is a matter to be resolved by the registrar).

2.                  On the question as to whether the claim against the third respondent is or is not a provable debt affected by s  60 of the Bankruptcy Act:

2.1              The applicant file and serve on the third respondent's trustee in bankruptcy an outline of submissions together with a list of material that is relied upon and any material proposed to be relied upon (which is not on the Court file) on or before Wednesday 17 February 2010.

2.2              The applicant file and serve on the third respondent an outline of submissions together with material that is relied upon and any material proposed to be relied upon (which is not on the Court file) on or before Wednesday 17 February 2010.

2.3              The third respondent and the third respondent's trustee in bankruptcy file and serve an outline and any material proposed to be relied upon (which is not on the Court file) on the applicant on or before Friday 19 February 2010.

2.4              23 February 2010 at 10:15am is appointed as the return date for the Notice of Motion in respect of the question as to whether the claim against the third respondent is or is not a provable debt affected by s  60 of the Bankruptcy Act

2.5              Costs of today’s proceedings in relation to the third respondent be reserved.

2.6              Any directions in respect of the third respondent be stood over until 23 February 2010.

3.                  The fourth respondent file and serve amended fast track response on or before 4 March 2010.

4.                  The applicant to file and serve any evidence upon which it intends to rely, including expert evidence, by 19 March 2010.

5.                  The fourth respondents to file and serve any evidence upon which they intend to rely, including expert evidence, by 23 April 2010.

6.                  The applicant to file and serve any evidence in reply by 7 May 2010.

7.                  Leave be granted to the parties to issue any notices to produce subpoenas returnable on 23 April 2010.

8.                  The matter be listed for further directions at 09:30 on 21 May 2010.

9.                  The matter be listed for hearing for nine days commencing on 15 June 2010.

10.              Liberty to apply for any party on two day’s notice.

11.              Costs reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     Hoop & Javelin Holdings Limited, which is a Maltese incorporated company, has sought default judgment against Intabill Inc, which is a company incorporated in the British Virgin Islands.  The basis for the application is to be found in O 35A r 3(2)(b) of the Federal Court Rules.  The precondition for the engagement of that rule is that a respondent be in default.  Order 35A r 2(2) sets out, for the purposes of O 35A, when a respondent is in default.  In turn, a precondition for there being a default in terms of that rule is that a respondent has not satisfied an applicant’s claim.

2                     I am satisfied on the evidence that Intabill has not satisfied Hoop & Javelin Holdings’ claim.  I am further satisfied, on the evidence, that Intabill has committed multiple events of default in terms of O 35A r 2(2), the most recent of which is a failure to appear at today’s scheduling conference. 

3                     That being so, the precondition for the engagement of O 35A r 3(2) is met.  Paragraph (b) of that rule is also met in that I am satisfied that the claim as against Intabill Inc, on the evidence to hand, is for a debt or liquidated damages.  That being so, Hoop & Javelin Holdings is entitled, in my opinion, to a grant of leave to enter judgment against Intabill for the debt and for liquidated damages.

4                     Further, and in terms of O 35A r 3(2)(b)(i) and (ii), Hoop & Javelin Holdings is entitled to costs in a sum fixed by the court and to interest.  It will be a matter for the registrar in terms of O 35A r 3(3) to be satisfied by affidavits in respect of the sum in respect of which debt or liquidated damages, costs and interest should be fixed for the purposes of entering judgment.  I grant leave accordingly.

Associate:

Dated:         5 March 2010