Ross v Cotter [2015] FCA 310

In brief: A Federal Court of Australia decision addressing deemed service; default judgment in circumstances where the Respondents failed to file a notice of address for service; and the Court’s power to award default judgment in the form of a liquidated debt in circumstances where declaratory relief is sought.  

Taylor David represented the successful Applicant Receivers in this matter.

Case summary by James Waterman.

For a copy of the full judgment, please click here.

Practice and procedure:

•  On deemed service under r10.23 of the Federal Court Rules 2011 (Cth) (the ‘Rules’) - Documents that must be served personally on an individual: Deemed service may apply in circumstances where it is not practical to serve the document personally and the document has been brought to the attention of the individual.

•  On default judgment under r5.23(3) of the Rules – Default judgment in the form of a liquidated debt may be available where declarations are being sought: The Court has power to order default judgment in the form of a liquidated debt for declaratory relief sought.

Decision 

Deemed service - r10.23

The Applicants applied under r10.23 of the Rules for deemed service of the originating application material on the First Respondent.  The evidence before His Honour was as follows:

Evidence as to circumstances where it is not practical to serve the document personally:

• The Applicants’ process server attempted to serve the First Respondent at his last known address and ascertained that he no longer resided at that address;

• The process server attempted to contact the First Respondent but the First Respondent did not respond; and

• The Applicants were not aware of the First Respondent’s current address for service.

Evidence as to the documents being brought to the attention of the First Respondent:

•  The Second Respondent was served personally at her place of work;

• The Second Respondent and the First Respondent were married; and

• From e-mail exchanges it was apparent that the Second Respondent and the First Respondent had discussed the originating application material that was served on the Second Respondent.

His Honour accepted the Applicants’ evidence and found that the originating application material was taken to have been served on the First Respondent. 

Default judgment - r5.23(3)

The Applicants' claim was brought by way of originating application. The claim sought declaratory relief and interest. The facts in support of the originating application were disclosed in the affidavit of Mr Ross (see paragraph 25 of the Judgment).  

His Honour held that based on the evidence from Mr Ross, the Applicants had established their claim for payment of the sum of $89,406.73. His Honour noted that while it was expressed as declaratory relief paragraph two (2) of the relief sought essentially constitutes a claim for “a debt or liquidated damages” within in the terms of r5.23(2)(b) of the Rules. Further His Honour considered that the words “or any other order” in r5.23(2)(d) of the Rules are broad enough  to cover the relief sought, including declaratory relief and an order for payment of the sum of $89,406.73.

His Honour ordered default judgment for the Applicants against the First and Second Respondents under r5.23(2) of the Rules in the sum of $103,247.46 made up as follows:

·         $89,406.73 for the claim.

·         $5,88.53 for interest.

·         $8,252.20 for costs.