FEDERAL COURT OF AUSTRALIA Mercantile Systems Pty Ltd v Prushka Fast Debt Recovery Pty Ltd [2009] FCA 1091 MERCANTILE SYSTEMS PTY LTD (ACN 002 920 256) v PRUSHKA FAST DEBT RECOVERY PTY LTD (ACN 005 962 854); PRUSHKA FAST DEBT RECOVERY PTY LTD (ACN 005 962 854) v MERCANTILE SYSTEMS PTY LTD (ACN 002 920 256) NSD 2216 of 2006 NSD 1587 of 2007 BENNETT J 25 august 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2216 of 2006 general division BETWEEN: MERCANTILE SYSTEMS PTY LTD (ACN 002 920 256) Applicant AND: PRUSHKA FAST DEBT RECOVERY PTY LTD (ACN 005 962 854) Respondent and between: PRUSHKA FAST DEBT RECOVERY PTY LTD (ACN 005 962 854) Cross-Claimant and: MERCANTILE SYSTEMS PTY LTD (ACN 002 920 256) Cross-Respondent JUDGE: BENNETT J DATE OF ORDER: 25 AUGUST 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application and cross-claim be dismissed. 2. Subject to order 3, there be no order as to costs of the application. 3. The applicant's solicitor pay the costs of the directions hearing of 25 August 2009 personally, pursuant to O 62 r 9 of the Federal Court Rules. 4. Orders 1 to 3 be stayed until 12:00 pm on 27 August 2009. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1587 of 2007 general division BETWEEN: MERCANTILE SYSTEMS PTY LTD (ACN 002 920 256) Applicant AND: PRUSHKA FAST DEBT RECOVERY PTY LTD (ACN 005 962 854) Respondent JUDGE: BENNETT J DATE OF ORDER: 25 august 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceedings be dismissed. 2. Subject to order 3, there be no order as to costs of the application. 3. The applicant's solicitor pay the costs of the directions hearing of 25 August 2009 personally, pursuant to O 62 r 9 of the Federal Court Rules. 4. Orders 1 to 3 be stayed until 12:00 pm on 27 August 2009. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2216 of 2006 general division NSD 1587 of 2007 BETWEEN: MERCANTILE SYSTEMS PTY LTD (ACN 002 920 256) Applicant PRUSHKA FAST DEBT RECOVERY PTY LTD (ACN 005 962 854) Cross-Claimant AND: PRUSHKA FAST DEBT RECOVERY PTY LTD (ACN 005 962 854) Respondent MERCANTILE SYSTEMS PTY LTD (ACN 005 962 854) Cross-Respondent JUDGE: BENNETT J DATE: 25 august 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 I note that terms of settlement ('terms of settlement') in this matter were filed with the Court under cover of a letter of 6 July 2007. They seem to have been executed by Mr Mendelson on behalf of the respondents and Mendelsons Lawyers and in his individual capacity. The copy filed with the court is not dated, nor is it executed by the applicant or the solicitor for the applicant. 2 The matter was stood over for a long period of time (over a year) to enable payments to be made in accordance with the terms of settlement. 3 My associate contacted the solicitor for the applicant before the matter came before the Court last week, after the time that had been allowed for the payments. The solicitor seemed to have been unaware that the matter was to be in Court on that occasion. He did appear. The matter was then adjourned for his convenience and, on his application, was stood over for one week to enable him to obtain instructions as to whether or not the terms of settlement had been complied with. There was no appearance on that occasion for the respondent. Correspondence between the parties that is now in evidence indicates that all payments envisaged by the terms of settlement have been paid. That correspondence was sent to the Court and to the applicant's solicitors by the respondent's solicitors after they were notified of the hearing last week. 4 On that occasion I also gave a direction that the applicant notify my associate by midday yesterday as to the current status of the proceedings so that, if there were no outstanding matters, orders could be made in chambers and further costs avoided. No such notification was received. 5 When the matter came on for hearing this morning, the applicant's solicitor appeared in person and the respondent's counsel appeared by telephone. The applicant has not filed any evidence whatsoever in response to the correspondence from the respondent that was sent to the Court and to the applicant's solicitor. No explanation has been given for any delay. No evidence is advanced by the applicant about whether or not the terms of settlement have been complied with. There is a deafening silence in terms of evidence from the applicant. However, the applicant's solicitor seeks a further adjournment. 6 On the other hand, I am informed by counsel for the respondent that all payments have been made in accordance with the terms of settlement and I have the correspondence that sets that out. In those circumstances, I bear in mind: · the time that the applicant has had to consider its position and to make appropriate representations to the Court by way of evidence if there were any outstanding issue; and · that it was envisaged in the terms of settlement that after this time there would be orders dismissing the proceedings. 7 I propose to dismiss the claim and cross-claim in the Federal Court proceedings. I also propose to make an order dismissing the statement of claim in the Local Court proceedings, which were transferred to this Court some time ago. 8 The respondent seeks costs of today. It seems to me, in circumstances where neither the applicant nor its solicitor has notified the Court or the respondent that it was of the view that today's proceedings were unnecessary, it is appropriate that the applicant pay the respondent's costs of today. 9 The respondent seeks an order under Order 62 rule 9 of the Federal Court Rules that those costs be paid by the applicant's solicitor personally. I propose to make that order. 10 It follows that the orders of the Court are, in the Federal Court proceedings, that the claim and cross-claim are dismissed, with no order as to costs of those proceedings. As to the local court proceedings, the statement of claim is dismissed. I make an order that the costs of today are to be paid by Mr Carlisle personally pursuant to Order 62 rule 9. 11 Those orders are stayed for two days. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 25 September 2009 Solicitor for the Applicant: Mr P Carlisle of Carlisle Attorneys Counsel for the Respondent: Mr I Cull Solicitor for the Respondent: Mendelson Lawyers Date of Hearing: 25 August 2009 Date of Judgment: 25 August 2009