Tyco (Australia) Pty Ltd T/AS ADT Security v Signature Security Group Pty Ltd (No 7) [2011] FCA 615

Tyco (Australia) Pty Ltd T/AS ADT Security v Signature Security Group Pty Ltd (No 7) [2011] FCA 615

The second and third respondents were fully aware the matter was listed for trial and failed to appear when called; that failure constituted default by failing to defend with due diligence. The statement of claim disclosed claims for relief based on alleged misleading representations and misuse of ADT Security customer lists, and the Court had power to grant damages, costs, injunctions and delivery up. Expert evidence supported damages on the higher basis and accrued interest, justifying judgment against both the second respondent and the third respondent in the sum of $1,739,643 with interest thereafter at $287.42 per day, together with the injunctive and ancillary orders sought.

Jurisdiction
Australia
Judgment Date
30 May 2011
Procedural Posture
Application for Default Judgment / Trial Listed; Notice of Motion for Default Judgment Against the Second and Third Respondents After They Failed to Appear
Outcome
Default judgment entered for the applicant against the second and third respondents, with damages, continuing interest, costs, permanent restraints and delivery up orders.
Legal Topics
['default Judgment' 'failure to Appear at Trial' 'federal Court Rules O 35 A' 'misleading and Deceptive Representations' 'confidential Customer Lists' 'breach of Confidence' 'conversion' 'permanent Injunctions' 'damages and Interest']
['civil Procedure' 'consumer Law' 'equity' 'torts'] ['default Judgment' 'failure to Appear at Trial' 'federal Court Rules O 35 A' 'misleading and Deceptive Representations' 'confidential Customer Lists' 'breach of Confidence' 'conversion' 'permanent Injunctions' 'damages and Interest']

Case Brief

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Procedural Posture

Application for Default Judgment / Trial Listed; Notice of Motion for Default Judgment Against the Second and Third Respondents After They Failed to Appear

Legal Issues

  1. 1 ['Whether the second and third respondents were in default under O 35A r 2(2)(h) by failing to attend trial and defend the proceeding with due diligence.' 'Whether the statement of claim disclosed claims for relief against the second and third respondents and whether the Court had jurisdiction to grant that relief under O 35A r 3(2).' 'Whether damages against the second and third respondents were sufficiently established by evidence.' 'Whether permanent injunctions and delivery up orders should be made concerning representations to ADT Security customers and ADT Security customer lists.']

Ratio Decidendi

The second and third respondents were fully aware the matter was listed for trial and failed to appear when called; that failure constituted default by failing to defend with due diligence. The statement of claim disclosed claims for relief based on alleged misleading representations and misuse of ADT Security customer lists, and the Court had power to grant damages, costs, injunctions and delivery up. Expert evidence supported damages on the higher basis and accrued interest, justifying judgment against both the second respondent and the third respondent in the sum of $1,739,643 with interest thereafter at $287.42 per day, together with the injunctive and ancillary orders sought.

Court Disposition

Default judgment entered for the applicant against the second and third respondents, with damages, continuing interest, costs, permanent restraints and delivery up orders.

Orders

  • ['Leave granted to the applicant to file in Court a notice of motion.' 'Leave granted to the applicant to file in Court the affidavit of Scott Anthony McDonald sworn 29 May 2011.' 'The requirement for service of the motion on the second and third respondents was dispensed with.' 'The motion was made returnable...