Burke v Residential Investments Australia Pty Ltd

EX TEMPORE REASONS FOR JUDGMENT 1 Pursuant to O 35A r 3(2) of the Federal Court Rules, the applicants seek judgment in default of appearance against the first, second and third respondents. The applicants rely on two affidavits of their solicitor, Andrew Sullivan, respectively sworn on 15 June and 13 August 2009, and numerous affidavits of service. 2 The applicants began the proceeding by an application and a statement of claim filed on 2 April 2009. An amended statement of claim and an amended application were filed on 22 May and 19 June 2009 respectively. 3 At the relevant time, the fourth respondent, Steven Matthew Apperly, was allegedly a director and secretary of the first respondent, Residential Investments Australia Pty Ltd. Also, at the relevant time, the fifth respondent, Lawrence Edwin Bowtell, was a director of Residential Investments and a director and secretary of the second and third respondents, namely, 122-136 Mason Street Pty Ltd and Riverdale Industries Pty Ltd. Messrs Apperly and Bowtell have both filed appearances. Mr Apperly has filed a Defence dated 12 June 2009. Mr Bowtell has filed a Defence dated 18 June 2009. 4 The applicants plead breach of contract against Mason Street and Riverdale Industries in respect of a property development at Newport in Victoria, known as "Park Waters". The applicants allegedly entered into contracts with these companies for the sale of land, and agent agreements pursuant to which Mason Street and Riverdale Industries were to engage a builder to build on the land. Also, according to the applicants' pleading, the applicants entered into a deed of undertaking with Mason Street and Riverdale Industries, in accordance with which the two respondent companies agreed to advance certain monies to the applicants. 5 The applicants allege that Mason Street and Riverdale Industries are in breach of the undertaking because they "failed to advance to each applicant sufficient funds to meet until the Date of Completion … interest on the loan made to each applicant by the relevant Bank to enable construction of the Dwelling in each case, which amount of interest has been paid by each applicant to each relevant Bank in each case". The applicants plead loss and damage, which is particularised. 6 The applicants also claim that Residential Investments has engaged in misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth); and that Messrs Apperly and Bowtell are jointly liable for the contravention pursuant to s 75B of that Act "because they aided, abetted and/or were knowingly concerned in the contravention". The applicants plead loss and damage, but this is not particularised. The misleading and deceptive conduct is said to have been constituted by misrepresentations that: · the Development Price set out in each Agent Agreement would be the total amount payable by each applicant in respect of the Development; · it would advance to the applicant at settlement of the contract for the sale of land an amount sufficient to meet until the Date of Completion interest on the loan made to each applicant by the relevant Bank to enable construction of the dwelling on the land; and · the applicants would have to make no interest payments during construction. 7 Mr Sullivan's first affidavit, the various affidavits of service on the court file and the court file establish that: · the application and statement of claim were posted to the company secretaries of Residential Investments, Mason Street and Riverdale Industries at the companies' registered offices on 7 April 2009. · there was no appearance for Residential Investments, Mason Street and Riverdale Industries at the first directions hearing on 22 April 2009, although Mr Apperly and Mr Bowtell were legally represented and appearances were entered. Orders made that day required the three respondent companies to file and serve their notices of appearance by 29 April 2009 and defences, by 13 May 2009. · On 22 April 2009, Mr Sullivan wrote to the three respondent companies. These letters were duly posted to the registered offices of the companies. · On 27 April 2009, a letter and a copy of the orders made that day were posted to the company secretaries of Residential Investments, Mason Street and Riverdale Industries at the companies' registered offices. · A letter dated 1 May 2009, signed by L Bowtell, advised that: "I have received confirmation from Andrew Sullivan of Orders having been made against each of 122-136 Mason Street Pty Ltd and Riverdale Industries Pty Ltd. I will request Mr Dean Gianerilli to contact you in order to express his views in this matter". · On 13 May 2009, the court made orders requiring the respondents to serve their defences by 12 June 2009. These orders were also duly posted to the respondent companies' registered offices. · The present notice of motion for default judgment and ancillary orders was filed on 16 June 2009, together with the affidavit of Mr Sullivan. · On 17 June 2009, orders were made (amongst other things) granting the applicants leave to file an amended application and statement of claim, and the fifth respondent, an extension of time in which to file a defence. · The notice of motion and the affidavit of Andrew Sullivan were posted to the respondent companies' registered offices on 4 August 2009. 8 None of the respondent companies has filed an appearance or defence. None appeared at the hearing of the application today. None of the respondent companies has attended any duly listed directions hearing. 9 At the hearing of the motion, Mr Sullivan, who appeared for the applicants, informed the court that he had recently spoken with the legal representatives of Messrs Apperly and Bowtell about the hearing of the motion this day.