Cawthorn, D.S. v. Remy Australie P/L & Ors [1994] FCA 929

JUDGMENT No. suctde lol ened tin

FOR IB

FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. NG 3194 of 1994 GENERAL DIVISION

BETWEEN:

DAVID SAXBY CAWTHORN Applicant

REMY AUSTRALIE PTY LIMITED Respondent

RECEIVED

REMY AUSTRALIE PTY LIMITED capa Cross-Claimant F AUSTRALIA

RESMI DEMA First Cross~respondent

PRINCIPAL REGISTRY

DINO TONEGATO Second Cross-respondent

CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 25 NOVEMBER 1994

REASONS FOR JUDGMENT

HIS HONOUR: In this case the cross-claimant proceeds by way of notice of motion against the second cross-respondent. The notice of motion seeks judgment in favour of the cross-claimant in the sum of $16,644.66. The basis of the application is that the second cross respondent has been in default in filing and serving

a defence to the cross-claim. Reliance is placed on 0 11 r 23

of the Federal Court Rules.

The cross claimant has read affidavits of service which

-2- demonstrate that the cross-claim was served on the second cross~ respondent on 15 June 1994. The notice of motion, together with an affidavit of debt in support, was served on 9 November 1994. That notice of motion indicated that the matter was returnable on 25 November 1994, although I do notice it does not include a time, just "a.m.". The affidavit of Mr Speechley has been read and it supports the quantum of the claim made in the notice of

motion.

If the cross-claim was served, as the affidavit of service indicates, a defence to the cross-claim should have been filed within 21 days in accordance with O 11, r 21. I have been informed that an order was made against the first cross respondent by Burchett J on 14 October 1994. That was done on the same basis which is relied upon today. The only reason why orders were not made on that occasion against the second cross- respondent, so I have been informed, was that the second cross-