Prosperity Group International Pty Ltd v Queensland Communication Company Pty Ltd [2009] FCA 1361

Prosperity Group International Pty Ltd v Queensland Communication Company Pty Ltd [2009] FCA 1361

Although the Third, Fourth and Fifth Respondents' repeated non-compliance enlivened the default judgment jurisdiction, default judgment was not entered because the matter was listed for mediation and the amended defence gave enough indication of their position to provide meaningful content to mediation. However, the latest non-compliance prevented efficient use of the hearing time and caused the Applicants avoidable costs, demonstrating that those Respondents were unable or unwilling to accept the importance of directions, so indemnity costs thrown away by the adjournment were ordered to be taxed and paid forthwith.

Jurisdiction
Australia
Judgment Date
12 November 2009
Procedural Posture
Practice Application for Default Judgment and Indemnity Costs / Amended Notice of Motion Adjourned Pending Mediation
Outcome
Default judgment was not entered; the amended notice of motion was adjourned to 8 February 2010 and indemnity costs were ordered against the Third, Fourth and Fifth Respondents.
Legal Topics
['default Judgment' 'non Compliance With Case Management Directions' 'indemnity Costs' 'mediation' 'stay of Proceedings Against Companies in Liquidation']
['practice and Procedure' 'costs' 'corporations'] ['default Judgment' 'non Compliance With Case Management Directions' 'indemnity Costs' 'mediation' 'stay of Proceedings Against Companies in Liquidation']

Case Brief

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Procedural Posture

Practice Application for Default Judgment and Indemnity Costs / Amended Notice of Motion Adjourned Pending Mediation

Legal Issues

  1. 1 ['Whether repeated non-compliance with case management directions warranted default judgment under O 35A r 2 of the Federal Court Rules.' 'Whether the application should instead be adjourned having regard to the listed mediation and the state of the amended defence and amended statement of claim.' 'Whether the Applicants should receive indemnity costs for costs thrown away by the adjournment.' 'Whether the liquidation of the First and Second Respondents under the Corporations Act 2001 (Cth) prevented further prosecution against the Third, Fourth and Fifth Respondents.']

Ratio Decidendi

Although the Third, Fourth and Fifth Respondents' repeated non-compliance enlivened the default judgment jurisdiction, default judgment was not entered because the matter was listed for mediation and the amended defence gave enough indication of their position to provide meaningful content to mediation. However, the latest non-compliance prevented efficient use of the hearing time and caused the Applicants avoidable costs, demonstrating that those Respondents were unable or unwilling to accept the importance of directions, so indemnity costs thrown away by the adjournment were ordered to be taxed and paid forthwith.

Court Disposition

Default judgment was not entered; the amended notice of motion was adjourned to 8 February 2010 and indemnity costs were ordered against the Third, Fourth and Fifth Respondents.

Orders

  • ["The First and Second Applicants' amended notice of motion filed today by leave is adjourned for hearing on 8 February 2010 at 9.30am." 'The Third, Fourth and Fifth Respondents are to file and serve, on or before 4 December 2009, such application, if any, in respect of the amended statement of claim.' 'Any such...