Ross v Cotter [2015] FCA 310

Ross v Cotter [2015] FCA 310

Personal service on Mr Cotter was not practicable and the originating documents had been brought to his attention, so deemed service was ordered. Both respondents were aware of the proceeding and hearing dates, failed to attend, and failed to file notices of address for service, placing them in default. The evidence established the applicants' claim for $89,406.73, with interest of $5,588.53 and costs of $8,252.20. Because an order for payment achieved the primary object of the relief, there was no utility in making the declarations sought.

Jurisdiction
Australia
Judgment Date
02 April 2015
Procedural Posture
Practice and Procedure Application for Deemed Service and Default Judgment / Default Judgment
Outcome
Default judgment entered for the applicants against the first and second respondents; declaratory relief declined for lack of utility.
Legal Topics
['deemed Service' 'default Judgment' 'failure to Attend Court' 'failure to File Notice of Address for Service' 'declaratory Relief' 'interest' 'costs']
['practice and Procedure' 'corporations' 'civil Procedure'] ['deemed Service' 'default Judgment' 'failure to Attend Court' 'failure to File Notice of Address for Service' 'declaratory Relief' 'interest' 'costs']

Case Brief

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Procedural Posture

Practice and Procedure Application for Deemed Service and Default Judgment / Default Judgment

Legal Issues

  1. 1 ['Whether the originating application and supporting affidavit should be taken to have been served on the first respondent under r 10.23 of the Federal Court Rules 2011 (Cth).' 'Whether the first and second respondents were in default by failing to attend directions hearings and failing to file notices of address for service.' 'Whether default judgment should be entered against the respondents for the amount claimed, interest and costs.' 'Whether there was utility in making the declaratory relief sought by the applicants.']

Ratio Decidendi

Personal service on Mr Cotter was not practicable and the originating documents had been brought to his attention, so deemed service was ordered. Both respondents were aware of the proceeding and hearing dates, failed to attend, and failed to file notices of address for service, placing them in default. The evidence established the applicants' claim for $89,406.73, with interest of $5,588.53 and costs of $8,252.20. Because an order for payment achieved the primary object of the relief, there was no utility in making the declarations sought.

Court Disposition

Default judgment entered for the applicants against the first and second respondents; declaratory relief declined for lack of utility.

Orders

  • ['The first and second respondents pay the applicants the sum of $94,995.26.' "The first and second respondents pay the applicants' costs of the proceeding fixed in the sum of $8,252.20."]