Total Development Supplies Pty Ltd v GRD Building Pty Ltd No 2 [2008] FCA 1501

FEDERAL COURT OF AUSTRALIA

Total Development Supplies Pty Ltd v GRD Building Pty Ltd No 2 [2008] FCA 1501

Trade Practices Act 1974 (Cth) TOTAL DEVELOPMENT SUPPLIES PTY LTD (ACN 108 294 051) v GRD BUILDING PTY LTD (ACN 114 871 082)

NTD19 of 2007

REEVES J

8 OCTOBER 2008

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY NTD19 of 2007

BETWEEN: TOTAL DEVELOPMENT SUPPLIES PTY LTD (ACN 108 294 051)

Applicant

AND: GRD BUILDING PTY LTD (ACN 114 871 082)

Respondent

JUDGE: REEVES J DATE OF ORDER: 8 OCTOBER 2008

WHERE MADE: DARWIN

THE COURT ORDERS THAT:

1. Judgment is entered for GRD Building Pty Ltd, the cross-claimant, against Total Development Supplies Pty Ltd, the cross-respondent in the sum of $1,366,977.72. 2. The cross-respondent pay the cross-applicant's costs of these proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY NTD19 of 2007

BETWEEN: TOTAL DEVELOPMENT SUPPLIES PTY LTD (ACN 108 294 051)

Applicant

AND: GRD BUILDING PTY LTD (ACN 114 871 082)

Respondent

JUDGE: REEVES J

DATE: 8 OCTOBER 2008

PLACE: DARWIN

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an assessment of damages in the respondent's, GRD Building Pty Ltd ('GRD'), cross-claim against the applicant, Total Development Supplies Pty Ltd ('Total'). It is necessary to briefly explain how it is that the respondent in these proceedings has effectively become the applicant.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND 2 GRD's cross-claim against Total has been made under the terms of a Standard Minor Works Sub-Contract ('the sub-contract') for the supply and installation of work and materials by Total (as the sub-contractor) to GRD (as the head-contractor) for a building project in Darwin. 3 As the title to these proceedings suggests, they began life as a claim by Total against GRD. Total's claim was for payments due under the sub-contract and for damages for misleading and deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth). Total's original claim was for approximately $124,000. That was later amended to approximately $128,000. 4 Sometime after these proceedings were commenced, GRD filed a cross-claim. In it GRD essentially claimed the loss and damage it claimed it had incurred in completing the sub-contract when Total had failed to do so. I was subsequently informed by the counsel for GRD that the total amount of GRD's cross-claim was estimated to be in the vicinity of $1.4 million. The cross claim, therefore, far exceeded Total's original claim. 5 On 27 May 2008, I tentatively set the claim and cross-claim proceedings down for hearing on the five days commencing 8 September 2008. On the same date, I made an order for security for costs against Total (see [2008] FCA 844). 6 Total did not provide that security. On 21 August 2008, Mr Maher, Total's solicitor, filed a notice of ceasing to act for Total. 7 The proceedings were then listed before me on 25 August 2008. At that hearing, I gave a Mr Sprigg, who was not a legal practitioner, limited leave to appear for Total. Mr Sprigg then informed me that Total intended to file a notice of discontinuance of its claim. Based on that indication, I vacated the hearing dates (which had since been confirmed) and adjourned the matter to 9 September 2008 for a hearing of GRD's cross-claim. 8 Total's notice of discontinuance was duly filed on 26 August 2008. Not surprisingly, there was no appearance for Total at the hearing on 9 September 2008. GRD's cross claim was then adjourned for further hearing on 16 September 2008 and 18 September 2008. 9 On 16 September 2008, I entered judgment by default against Total on GRD's cross-claim with damages to be assessed. I then received a large quantity of affidavit evidence directed to establishing GRD's damages and reserved my decision on that issue on 18 September 2008.