Tamawood Limited v Habitare Developments Pty Ltd

Solicitor for the First Respondent: Mr J Hughes of Allens Arthur Robinson

Counsel for the Second and Fifth Respondents: Mr J Dearn

Solicitor for the Second and Fifth Respondents: Romans & Romans Lawyers

Counsel for the Third, Fourth, Seventh and Eighth Respondents: Mr DLK Atkinson

Solicitor for the Third, Fourth, Seventh and Eighth Respondents: B2B Lawyers

Counsel for the Sixth Respondent/Cross-Claimant: Mr DLK Atkinson

Solicitor for the Sixth Respondent/Cross-Claimant: B2B Lawyers

Counsel for the Ninth Respondent/Cross-Respondent: Mr AM Musgrave

Solicitor for the Ninth Respondent/Cross-Respondent: Barry.Nilsson Lawyers

Counsel for the Third Party/Cross-Respondent: The First Third Party/Cross-Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION NSD 2504 of 2007

AND: HABITARE DEVELOPMENTS PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) ACN 122 935 497

BLOOMER CONSTRUCTIONS (QLD) PTY LTD ACN 071 344 100

EIGHT MARCH PTY LTD ACN 099 315 787 (AS TRUSTEE OF THE EIGHT MARCH DISCRETIONARY TRUST)

FIRST PRIORITY DEVELOPMENTS PTY LTD ACN 098 329 465

JUDGE: COLLIER J DATE OF ORDER: 13 SEPTEMBER 2011 WHERE MADE: BRISBANE

1. The first, third, fourth, sixth, seventh and eighth respondents file and serve Defences to the Third Further Amended Statement of Claim and file and serve any affidavits upon which they rely in respect of those Defences by 4.00 pm on 20 September 2011.
2. In default of compliance with Order 1 of these Orders, judgment be entered against the first, third, fourth, sixth, seventh and eighth respondents in respect of the Further Amended Application and the Third Further Amended Statement of Claim.
3. The sixth respondent's cross-claim ("the second cross-claim") against Mondo Architects Pty Ltd ("the first cross-respondent") and Raymond John McDonald Sweeney ("the second cross-respondent") be dismissed unless the sixth respondent files and serves affidavits upon which it intends to rely in respect of the second cross-claim by 4.00 pm on 20 September 2011. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION NSD 2504 of 2007

AND: HABITARE DEVELOPMENTS PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) ACN 122 935 497

BLOOMER CONSTRUCTIONS (QLD) PTY LTD ACN 071 344 100

EIGHT MARCH PTY LTD ACN 099 315 787 (AS TRUSTEE OF THE EIGHT MARCH DISCRETIONARY TRUST)

FIRST PRIORITY DEVELOPMENTS PTY LTD ACN 098 329 465

JUDGE: COLLIER J DATE: 19 SEPTEMBER 2011 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 During an interlocutory hearing of these proceedings last week I made a number of orders. Included in those orders were the following: 1. The first, third, fourth, sixth, seventh and eighth respondents file and serve Defences to the Third Further Amended Statement of Claim and file and serve any affidavits upon which they rely in respect of those Defences by 4.00 pm on 20 September 2011. 2. In default of compliance with Order 1 of these Orders, judgment be entered against the first, third, fourth, sixth, seventh and eighth respondents in respect of the Further Amended Application and the Third Further Amended Statement of Claim. 3. The sixth respondent's cross-claim ("the second cross-claim") against Mondo Architects Pty Ltd ("the first cross-respondent") and Raymond John McDonald Sweeney ("the second cross-respondent") be dismissed unless the sixth respondent files and serves affidavits upon which it intends to rely in respect of the second cross-claim by 4.00 pm on 20 September 2011. 2 In respect of the interlocutory orders I made the parties did not seek written reasons. Subject to the date for compliance being 20 September 2011 rather than 14 days from 13 September 2011, the third, fourth, sixth, seventh and eighth respondents did not cavil with the orders made against them in respect of the applicant's interlocutory application (transcript 13 September 2011 p 26 ll 1-6). In my view it is also clear from the transcript that the sixth respondent did not seriously cavil with the order that its cross-claim against Mondo Architects Pty Ltd ("Mondo") and Mr Raymond Sweeney stand dismissed unless it filed relevant material by 4.00 pm on 20 September 2011 (transcript 13 September 2011 pp 28-29). 3 However, in light of the serious impact on the position of the first, third, fourth, sixth, seventh and eighth respondents in this litigation arising from these particular orders I considered it appropriate to provide written reasons.

Background 4 These proceedings have been lengthy and complex. The original application was filed in this Court on 21 December 2007, almost four years ago. In summary, the applicant seeks relief for breach of copyright against numerous developers, builders and architects associated with housing development projects. During those four years the litigation has mushroomed such that there are now nine respondents to the application, and three cross-claims filed by a number of respondents (and third parties). 5 No specific responsibility can be laid at the feet of any of the parties for the protracted nature of this litigation. However clearly there has been lethargy associated with the proceedings on all sides. This has been characterised by: periods of time during which little activity has been apparent on the file; repeated - and frequently consent - approaches to the Court to postpone compliance with orders; and at least seven occasions on which the parties have approached the Court to vacate hearings (on 26 August 2008, 8 July 2009, 29 July 2009, 13 August 2009, 26 August 2009, 27 August 2009, 19 November 2009). 6 By way of example: On 24 September 2010 I ordered that the parties engage in mediation in Brisbane on or before 28 February 2011. On 18 March 2011 the parties came before me again and it was clear that, for no satisfactory reason provided to the Court other than more delays in respect of preparation of the further amended application and a second further amended statement of claim, and delays in respect of discovery, the parties had not been to mediation as ordered notwithstanding the passage of 5 months. On 18 March 2011 I ordered the parties to attend mediation on or before 30 June 2011. Notwithstanding this extension of time to allow the parties to attend mediation the parties could still not comply with the Court's order. On 11 April 2011 the parties communicated with Chambers, requesting that the Court order concerning mediation be varied by one day, and that mediation occur on or before 1 July 2011. 7 A second example relates to the delays of the parties in filing cross-claims as reflected in the following orders: Orders 7 and 8 of 13 August 2010 in which I gave leave to the first to eighth respondents to file and serve a cross-claim against the ninth respondent, and the ninth respondent to file and serve a cross-claim against the applicant. Order 4 of 24 September 2010 requiring the relevant cross-claims to be filed and served by 26 November 2010. Order 12 of 18 March 2011 extending the date for filing of the relevant cross-claims to 10 June 2011. Order 8 of 12 July 2011 extending the date for filing of the cross-claim of the first to eight respondents against the ninth respondent and Raymond John Sweeney until 29 July 2011. Extensive orders proposed by the parties on 28 July 2011 including Order 4 granting leave to the ninth respondent to file a cross-claim by 28 July 2011, and Order 10 ordering the first to eighth respondents' cross-claim to be filed by 5 August 2011. 8 A third example relates to the attention given by the Court in management of this matter in an endeavour to progress the proceedings, and despite which the majority of respondents have still not filed their Defence to the principal application or their evidence relevant to the proceedings. Since the original application was filed, I note that: Twenty-seven sets of orders have been made in these proceedings both in Court and from Chambers (on 12 February 2008, 25 August 2008, 29 October 2008, 25 November 2008, 20 April 2009, 30 April 2009, 19 May 2009, 8 July 2009, 29 July 2009, 28 August 2009, 18 November 2009, 24 November 2009, 28 January 2010, 3 March 2010, 4 June 2010, 28 June 2010, 16 July 2010, 13 August 2010, 24 September 2010, 18 March 2011, 11 April 2011, 4 May 2011, 12 July 2011, 27 July 2011, 28 July 2011 x 2, 13 September 2011). The matter has been before the Court on six separate occasions for directions, in respect of seven separate interlocutory applications, and four times in respect of return of subpoenas. 9 On 11 April 2011 I informed the parties that in light of the passage of time since the filing of the original application, it was appropriate to set a trial date for the hearing, and that I expected the parties to work towards that trial date. After submissions from the parties I set the matter down for hearing for nine days commencing 18 October 2011. 10 On 28 July 2011 the parties submitted complex timetabling directions, to which all parties contributed, taking the matter to trial for consideration by the Court. I made the orders sought by the parties. These directions contemplated, inter alia, that: in respect of the principal proceedings: by 19 August 2011 the respondents file their respective Defences to the Third Further Amended Statement of Claim; in respect of the principal proceedings: by 12 September 2011 the respondents file affidavits (including expert evidence) upon which they intended to rely; in respect of the cross-claim proceedings: by 19 August 2011 the first to eighth respondents/cross-claimants file any affidavits on which they intended to rely. 11 As at the hearing of 13 September 2011 it was clear that the first, second, third, fourth, fifth, sixth, seventh and eighth respondents had not complied with these orders in relation to the filing of their Defences or evidence, that the sixth respondent had not filed material in support of its cross-claim against Mondo and Mr Raymond Sweeney, and that none of those respondents disputed that they had failed to comply with the orders of 28 July 2011.

Interlocutory application of the second and fifth respondents 12 At the hearing on 13 September 2011 the second and fifth respondents sought leave to file in Court an amended interlocutory application wherein they sought: leave to file their Defences to the Third Further Amended Statement of Claim on the day of the hearing; and an order in substance allowing them to file evidence on or before 20 September 2011. 13 The applicant consented to those orders being made, and I gave leave for the second and fifth respondents to file their Defences in Court. Subsequently, at the hearing last week the applicant did not press for further orders against those respondents, and pressed for orders only against the first, third, fourth, sixth, seventh and eighth respondents.

Interlocutory application of the applicant 14 On 8 September 2011 the applicant filed an interlocutory application seeking numerous orders against the respondents. At the hearing it was clear, however, that since the previous directions hearing, the first respondent had entered voluntary administration pursuant to Pt 5.3A of the Corporations Act 2001 (Cth) ("the Act"). Indeed it was apparent that the first respondent had entered voluntary administration on 29 July 2011, the day after complex timetabling directions had been made by the Court. The applicant sought an order granting leave pursuant to s 440D of the Act for the applicant to proceed with the substantive proceedings against the first respondent. The order was neither consented to nor opposed by the administrator for the first respondent, who entered an appearance at the hearing. While as a general proposition the Courts are cautious in granting leave to a litigant pursuant to an application under s 440D (Foxcroft v The Ink Group Ltd (1994) 15 ACSR 203, Buckingham v Pan Laboratories (Australia) Pty Ltd (in liquidation) [2004] FCA 597) in this case I was prepared to make an order under s 440D in light of: the advanced stage of the proceedings; the as yet unresolved issues concerning liability of the first respondent and the sixth respondent, particularly in light of the similarities of their names. 15 Following that order, the applicant pressed the following orders (including in respect of the first respondent) (transcript 13 September 2011 pp 33-34): An order pursuant to rule 5.23(e) declaring that the first, third, fourth, sixth, seventh and eighth respondents have infringed the copyright of the applicant in the drawings known as Arcadia, Conondale, Torrington, Dunkeld, Armstrong and Hazen house plans which drawings are particularised in the Third Further Amended Statement of Claim, such order to take effect on 16 December 2011 in respect of any of those Respondents who have not filed their Defences. Alternatively, an order pursuant to rule 5.23(e) declaring that the first, third, fourth, sixth, seventh and eighth respondents have infringed the copyright of the applicants in the drawings known as Arcadia, Conondale, Torrington, Dunkeld, Armstrong and Hazen house plans which drawings are particularised in the Third Further Amended Statement of Claim, such order to take effect on 19 September 2011 in respect of any of those Respondents who have not filed the affidavits on which they intend to rely at the trial of this matter except for any of those Respondents who have advised the Applicant's solicitor in writing prior to 19 September 2011 that they do not seek to rely on any affidavit at the trial of this matter. (errors in original) 16 This relief reflects the relief sought by the applicant against the respondents in the Further Amended Application filed 27 October 2010 and the Third Further Amended Statement of Claim filed 5 August 2011.

Interlocutory application of Mondo Architects Pty Ltd and Mr Raymond Sweeney 17 Mondo and Mr Raymond Sweeney also sought leave to file in Court an amended interlocutory application wherein they sought the following relief against the sixth respondent, Habitare Developments Pty Ltd, in respect of the cross-claim of the sixth respondent against Mondo and Mr Raymond Sweeney: 1. Pursuant to Rule 5.23(1)(b), the sixth respondent's cross claim against the first and the second cross respondents (Mondo and Mr Raymond Sweeney) be dismissed. 2. In the alternative to the orders sought in paragraph 1: 2.1 Pursuant to Rule 19.01, the sixth respondent give security for the costs of the first and second cross respondents to the second cross claim with respect to the second cross claim against the first and second cross respondents 2.2 The security is to be given in such amount and in such manner, time and terms as the Registrar may determine 2.3 Pursuant to Rule 19.01, the second cross claim against the first and second cross respondents be stayed until security is provided in the amount, manner, time and terms as determined by the Registrar 2.4 Pursuant to Rule 19.01, if the sixth respondent fails to provide security for costs in the amount, manner, time and terms as determined by the Registrar on or before 30 September 2011, the second cross claim against the first and second cross respondents be dismissed. 18 Mondo and Mr Raymond Sweeney are cross-respondents to a cross-claim filed by the sixth respondent on 5 August 2011. 19 At the hearing the sixth respondent did not oppose the interlocutory application for security for costs. As an order for security for costs was not opposed by Counsel for the sixth respondent, and as it was clear from both evidence before the Court and submissions from the bar table that the solvency of the sixth respondent is dubious at best, I took the view that it was appropriate that the Court make an order for security for costs pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) and r 19 of the Federal Court Rules 2011 (Cth) ("the Rules"). Further, Mr Atkinson for the sixth respondent did not cavil with the proposal that the cross-claim be dismissed should the sixth respondent not provide security for costs as ordered (transcript 13 September 2011 p 41 ll 9-34). The only issue in dispute was the quantum of security, and I made orders based on the evidence before me.

Relief sought 20 At the hearing it was clear that there had been developments subsequent to the filing of the two interlocutory applications by the applicant, and Mondo and Mr Raymond Sweeney. In particular, an affidavit had been prepared (and tendered in Court) by the new solicitor for the third, fourth, sixth, seventh and eighth respondents, and Mondo and Mr Raymond Sweeney had attempted to file an amended interlocutory application against the sixth respondent. During the course of argument, however, it was clear that the applicant, and Mondo and Mr Raymond Sweeney, sought relief against the relevant respondents based on r 5.23 of the Rules. This rule provides: 5.23 Orders on default (1) If an applicant is in default, a respondent may apply to the Court for an order that: (a) a step in the proceeding be taken within a specified time; or (b) the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant: (i) immediately; or (ii) on conditions specified in the order. (2) If a respondent is in default, an applicant may apply to the Court for: (a) an order that a step in the proceeding be taken within a specified time; or (b) if the claim against the respondent is for a debt or liquidated damages - an order giving judgment against the respondent for: (i) the debt or liquidated damages; and (ii) if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or (c) if the proceeding was started by an originating application supported by a statement of claim, or if the Court has ordered that the proceeding continue on pleadings - an order giving judgment against the respondent for the relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled; or (d) an order giving judgment against the respondent for damages to be assessed, or any other order; or (e) an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order. Note 1 The Court may make any order that the Court considers appropriate in the interests of justice - see rule 1.32. Note 2 An order or judgment under this Division may be set aside or varied. 21 The relief sought by the applicant against the first, third, fourth, sixth, seventh and eighth respondents at the hearing was clearly referable to r 5.23 (2)(b), (c), (d) and (e) of the Rules. 22 The relief sought by Mondo and Mr Raymond Sweeney against the sixth respondent at the hearing was clearly referable to r 5.23(1)(b). 23 Notwithstanding the different rules upon which they relied, there was considerable overlap between the cases of the applicant, and Mondo and Mr Raymond Sweeney. In summary, guillotine orders were sought against the first, third, fourth, sixth, seventh and eighth respondents by the applicant, and against the sixth respondent by Mondo and Mr Raymond Sweeney, on the following grounds: The relevant respondents do not dispute that they have failed to comply with the orders of 28 July 2011, and have failed to file Defences and evidentiary material required by those orders. In order for the parties to meet the trial date, it is necessary that the applicant be put in possession of the Defences and evidence of the respondents by 20 September 2011. Similarly Mondo and Mr Raymond Sweeney need to be put in possession of material upon which the sixth respondent is relying in respect of its cross-claim by 20 September 2011 to meet the trial date. The additional 14 days the third, fourth, sixth, seventh and eighth respondents sought for compliance with the orders of 28 July 2011 would jeopardise the trial dates, and cause prejudice to the applicant in respect of its principal claim, and Mondo and Mr Raymond Sweeney in respect of the cross-claim. While the new solicitor for the third, fourth, sixth, seventh and eighth respondents deposed that those respondents were endeavouring to access funding to continue their Defences and adduce evidence both in support of their Defences and the sixth respondent's cross-claim, the solicitor's evidence was hearsay. The respondents have not sought vacation of the trial dates at this stage in respect of any aspect of the trial. The first respondent has entered voluntary administration and there is no real prospect that it will comply with orders of the Court of 28 July 2011 in the foreseeable future. 24 Mr Atkinson for the third, fourth, sixth, seventh and eighth respondents submitted that there is no history of non-compliance by the third, fourth, sixth, seventh and eighth respondents in respect of previous orders of the Court; that the respondents have experienced financial difficulties as illustrated by the voluntary administration of the first respondent the day after extensive timetabling directions were made on 28 July 2011; that the respondents who are members of the Habitare Group are indebted to the ANZ Bank in excess of $30 million; and that those respondents are currently seeking funding in respect of this litigation. An affidavit prepared by the solicitor for those respondents, and tendered for identification in anticipation of filing, supported Mr Atkinson's submissions (transcript 13 September 2011 p 20). Accordingly, Mr Atkinson sought an order from the Court allowing these respondents 14 days from 13 September 2011 to file both their Defences and material upon which they were relying (transcript 13 September 2011 p 10).

Consideration 25 Shutting a party out of litigation for non-compliance with orders is a step of the utmost seriousness. This is particularly so where no claim is made that the defaulting parties have a history of non-compliance with previous Court orders. However as Wilcox and Gummow JJ noted in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388, it may also be appropriate for the Court to make orders pursuant to what is now r 5.23 of the Rules in circumstances where, whatever the defaulting party's state of mind or resources, the non-compliance is continuing and occasioning unnecessary delay, expense of other prejudice to the other party or parties. 26 Earlier in this judgment I gave numerous examples of the delays in progressing these proceedings, and explained that in April this year I ordered that the matter be set down for trial. In my view, the passage of almost four years, during which the case has slowly grown in complexity but the appetite of the parties to go trial has been questionable, means that the time has well and truly passed for the matter to be determined in trial. It is not in the interests of the parties, or this Court, for the matter to continue to roll on indefinitely with ongoing and generous extensions of time for compliance. While the Court endeavours as a practical matter to accommodate the needs of parties and the vagaries of litigation, it is not reasonable that this patience be inexhaustible. The claims of the applicant and the various cross-claimants in this case require determination; further, it is appropriate from the perspective of the respondents that the claims against them be resolved. In addition, it is important in the context of case management in this Court that proceedings should go to trial as expeditiously as possible. As the High Court observed in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175: 92. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: "Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation." 93. Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected: "[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ...". 27 Compliance by the first, third, fourth, sixth, seventh and eighth respondents with orders requiring them to file their Defences and material in respect of the substantive proceedings, and by the sixth respondent with orders requiring it to file material in respect of its cross-claim, is well and truly overdue. These orders require compliance by the relevant respondents in order for the applicant (in relation to the primary proceedings) and Mondo and Mr Raymond Sweeney (in relation to the cross-claim) to understand the cases they are required to meet at trial in a little over four weeks from now. I accept the submissions of the applicant, Mondo and Mr Raymond Sweeney that the above mentioned respondents need to comply with those orders by 20 September 2011 for the parties to be in a position by 18 October 2011 to meaningfully conduct the trial. I note that the first respondent has entered voluntary administration, however it was represented at the hearing of 13 September 2011 and no submissions were made either consenting to or opposing orders sought by the applicant. 28 As matters currently stand however, the first, third, fourth, sixth, seventh and eighth respondents are clearly not ready for trial. They have not sought orders vacating the trial dates. In light of the submissions of Mr Atkinson I am prepared to grant the first, third, fourth, sixth, seventh and eighth respondents one last indulgence - namely that they comply with orders relating to the filing of Defences, and material, by 20 September 2011. In default, I consider that judgment should be entered against those respondents in the terms sought by the applicant, and the ninth respondent Mondo and the first third party Mr Raymond Sweeney. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.