FEDERAL COURT OF AUSTRALIA

Hoop & Javelin Holdings Limited v BT Projects Pty Limited (In Liq) (No 6) [2010] FCA 742

THE COURT ORDERS THAT:

1.                  Leave is granted to the applicant to enter judgment against the third respondent in the amounts of:

(a)                EUR 1,843,888.79

(b)                USD 644,004.00,

together with interest on each of the amounts at the cash rate of interests set by the Reserve Bank of Australia from time to time during the period from 27 March 2009 to the date of entry of judgment plus 4 per cent.

2.                  The third respondent pay the applicant’s costs of and incidental to the proceedings to be taxed.

3.                  The solicitors for the applicant be at liberty to pay to the applicant the sum of $100,000.00 presently held by those solicitors in their trust account pursuant to payment made as security for costs of the third respondent under the order of Foster J made on 1 October 2009.

4.                  Liberty to apply is granted.

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 Ltd (A Company Incorporated in Malta), hereafter “Hoop & Javelin,” has applied, pursuant to O 35A r 3(2) of the Federal Court Rules, for leave to enter judgment against Mr Daniel Kim Tzvetkoff (Mr Tzvetkoff), the third respondent.  I am satisfied that Mr Tzvetkoff has been given notice of this application at the address for service which he specified. 

2                     Some brief recitation of the background to that specification of address by him is necessary.  Earlier in the proceedings, it became necessary in the course of Hoop & Javelin’s prosecution of those proceedings to make an order in respect of substituted service.  I made such an order on 11 March 2010.  Thereafter Mr Tzvetkoff entered an appearance in his own right with an address for service being specified.  That particular interlocutory proceeding was a sequel to a listing of the case on 12 February 2010.  At that time, Mr Tzvetkoff was represented by solicitors on the record, Cronin Litigation Lawyers. 

3                     On 23 February 2010, I heard an application by Hoop & Javelin for a declaration that its claims as against Mr Tzvetkoff were not provable in his bankruptcy within the meaning of s 82(2) of the Bankruptcy Act 1966 (Cth).  For reasons given that day, I concluded that they were not.  Thereafter, as I have mentioned, and following the withdrawal of solicitors on the record, a substituted service order was made. 

4                     Further thereafter again, on 30 April 2010, and again on 21 May 2010, when the matter was listed for directions there was no appearance by or on behalf of Mr Tzvetkoff.  Also on 11 March 2010, I made an order in respect of the filing of a response to Hoop & Javelin’s fast track statement.  The order was that Mr Tzvetkoff file and serve his fast track response on or before 26 March 2010.  That was not done.  Today upon the application being called on, Mr Tzvetkoff did not appear, nor was there any appearance on his behalf.  Nor has there been any communication from him evident either to the solicitors for Hoop & Javelin or, for that matter, to the registry of the court in the evidence before me today. 

5                     From this recitation, it will be apparent that there are ample events of default on the part of Mr Tzvetkoff as a respondent in terms of O 35A r 2(2) of the Federal Court Rules. 

6                     Because this case was a fast track case, that has had the effect that there was not filed by Hoop & Javelin, as under the otherwise usual practice of the court there would have been, a statement of claim.  The liability asserted against Mr Tzvetkoff is though evident from the amended application read in conjunction with Hoop & Javelin’s second further amended fast track statement.  By reference to those documents, it is apparent that the allegation is that the first and second respondents respectively, BT Projects Proprietary Limited, in liquidation, and Interbill Inc, (A Company Incorporated in The British Virgin Islands) were indebted to Hoop & Javelin pursuant to an agreement described in that fast track statement in the amount of euro 1,843,888.79 and $US644,004.  The allegations as against Mr Tzvetkoff arise under the Trade Practices Act 1974 (Cth) (Trade Practices Act).  They are apparent from para 33 and para 43 of the fast track statement.  In short, the allegation is that Mr Tzvetkoff, contrary to s 75B of the Trade Practices Act, aided, abetted, counselled or procured a contravention by either BT Projects or Interbill of s 52 of the Trade Practices Act.

7                     There is, it should be stated, an allegation as against each of those companies of a contravention of s 52 of the Trade Practices Act.

8                     It may be that O 35A requires amendment, or at least that consideration is necessary to the amendment of O 35A, to take account of developments in the court’s practice in relation to the Fast Track list.  I make that observation because O 35A r 3(2)(c) of the Federal Court Rules makes reference to a proceeding commenced by an application supported by a statement of claim, or to a proceeding where the court has ordered that the proceeding continue on pleadings.  It does not make express reference to Fast Track practice. 

9                     Realising that potential deficiency, depending upon how one reads the terms, statement of claim and pleadings in O 35A r 3(2)(c) of the Federal Court Rules, Hoop & Javelin also rely upon para (d), which is “give judgment or make any other order against the respondent.

There is also reliance upon O 35A r 3(2)(b) of the Federal Court Rules which relates to a claim against a respondent for a debt or liquated damages. 

10                  The claim as against Mr Tzvetkoff is not for a debt.  In my opinion, the claim is though one for liquidated damages.  If that be wrong, I am satisfied, having regard to the terms of the Fast Track statement in its present form, that Hoop & Javelin is entitled on the basis of the allegations made against Mr Tzvetkoff in that document to the relief that is claimed in the amended application and further sought today by the notice of motion. 

11                  Hoop & Javelin by its solicitors has expressly requested that any judgment or leave to enter judgment be expressed in the foreign currencies mentioned.

12                  Order 35 r 7A of the Federal Court Rules makes provision in respect of interest up to judgment.  It provides that in determining a rate of interest for the purposes of the Court’s power to order interest up to judgment under s 51A of the Federal Court of Australia Act 1976 (Cth), the court or a judge may fix the rate as the cash rate of interest set by the Reserve Bank of Australia from time to time during the period mentioned in s 51A(1)(a) of the Act plus four per cent.  That seems to me to be an appropriate and fair rate of interest, particularly as it is the rate expressly identified and Mr Tzvetkoff has not appeared here to contend for some different rate.  In other words, the rules give notice as to a particular rate and then it is possible to fix an alternative rate, but Mr Tzvetkoff has at least had notice, as has the world at large, as to a rate which can be fixed by the express reference to the Reserve Bank cash rate in the rules plus four per cent.

13                  It is then necessary to fix a time from which interest should be allowed.  For that purpose, I have had regard to the allegations made in the Fast Track statement, together with the statement of facts, matters and contentions constituting Mr Tzvetkoff’s alleged contravention as filed by Hoop & Javelin on 27 November 2009. 

14                  From these documents, it is apparent that the allegation made arises from a provision to Hoop & Javelin of on‑line billing and payment services under the agreement alleged by BT Projects or, alternatively, Intabill, Inc from 18 December 2008 to 1 April 2009.  As at 17 March 2009, the allegation made is that Hoop & Javelin was owed euros 2,093,880.79 and $US644,004.  The allegation further made is that on or about 17 March 2009, Hoop & Javelin demanded from BT Projects or, alternatively, Intabill, Inc the payment of those amounts. 

15                  Thereafter, BT Projects or, alternatively, Intabill made electronic transfers to Hoop & Javelin, so it is alleged, in part satisfaction of that totality of debt which I have mentioned by way of the following transfers: 

·                    18 March 2009 – 100,000 euros; 

·                    19 March 2009 – 100,000 euros; 

·                    and 27 March 2009 – 50,000 euros. 

The balance, thus, alleged is 1,843,888.79 euros and $US644,004.  Having regard to those allegations, it seems to me that Hoop & Javelin should be regarded as having been kept out of its money, or the balance of its moneys, from 27 March 2009.  I, therefore, propose, in respect of interest, to order that the interest in respect of which I shall grant leave to enter judgment be fixed at the cash rate of interest set by the Reserve Bank of Australia from time to time from 27 March 2009 to the date of entry of judgment, plus four per cent. 

This case is one which was originally in the New South Wales registry of the Court.  At the time, prior to its transfer, an order was made on 1 October 2009 which provided by consent for Hoop & Javelin, materially, to provide $100,000 security for the costs of Mr Tzvetkoff up to and including his witness statements.  That sum, together with a like sum ordered by way of security for costs in respect of the fourth respondent, was ordered to be provided by way of cleared funds held in the trust account of Hoop & Javelin’s solicitors within fourteen days from that order, pending further order or agreement between Hoop & Javelin and, again, materially, Mr Tzvetkoff.  It is appropriate to make provision in respect of the return to Hoop & Javelin of the sum provided by way of security. 

Associate:

Dated:         15 July 2010