FEDERAL COURT OF AUSTRALIA Hoop & Javelin Holdings Limited v BT Projects Pty Limited (In Liq) (No 4) [2010] FCA 192 Citation: Hoop & Javelin Holdings Limited v BT Projects Pty Limited (In Liq) (No 4) [2010] FCA 192 Parties: HOOP & JAVELIN HOLDINGS LIMITED (A COMPANY INCORPORATED IN MALTA) v BT PROJECTS PTY LIMITED (IN LIQUIDATION) (ACN 097 995 698), INTABILL, INC (A COMPANY INCORPORATED IN THE BRITISH VIRGIN ISLANDS), DANIEL KIM TZVETKOFF and SALVATORE SCIACCA File number: NSD 597 of 2009 Judge: LOGAN J Date of judgment: 23 February 2010 Legislation: Federal Court Rules O 35A r 3(2), O 35A r (3)(2)(b), O 35A r 3(3) Date of hearing: 23 February 2010 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 5 Solicitor for the Applicant: Norton Rose Solicitor for the Respondents: No appearance by the Respondents IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 597 of 2009 BETWEEN: HOOP & JAVELIN HOLDINGS LIMITED (A COMPANY INCORPORATED IN MALTA) Applicant AND: BT PROJECTS PTY LIMITED (IN LIQUIDATION) (ACN 097 995 698) First Respondent INTABILL, INC (A COMPANY INCORPORATED IN THE BRITISH VIRGIN ISLANDS) Second Respondent DANIEL KIM TZVETKOFF Third Respondent SALVATORE SCIACCA Fourth Respondent JUDGE: LOGAN J DATE OF ORDER: 23 FEBRUARY 2010 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The orders made in paragraph 1 of the order of 12 February 2010 are vacated. 2. In lieu thereof, leave is granted to the applicant to enter judgment against the second respondent for the debt, liquidated damages and interest. 3. Leave is separately granted to the applicant to enter judgment against the second respondent for costs including costs of and incidental to the default judgment application and of today's application for variation of the orders, to be taxed. 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 Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 597 of 2009 BETWEEN: HOOP & JAVELIN HOLDINGS LIMITED (A COMPANY INCORPORATED IN MALTA) Applicant AND: BT PROJECTS PTY LIMITED (IN LIQUIDATION) (ACN 097 995 698) First Respondent INTABILL, INC (A COMPANY INCORPORATED IN THE BRITISH VIRGIN ISLANDS) Second Respondent DANIEL KIM TZVETKOFF Third Respondent SALVATORE SCIACCA Fourth Respondent JUDGE: LOGAN J DATE: 23 FEBRUARY 2010 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On 12 February 2010 for reasons which I then gave in short form, I granted leave to Hoop & Javelin to enter judgment by default as against the Second Respondent, Intabill Inc, for the debt claimed and for liquidated damages. The way in which I expressed the order was as follows: On the question of the default judgment against the second respondent: (a) Leave is granted to enter judgment against the second respondent for the debt and for liquidated damages; (b) In terms of order 35A, rule 3(2)(b)(i) and (ii), the applicant is entitled to costs in a sum fixed by the court, and to interest (the court notes that this a matter to be resolved by the Registrar). 2 Hoop & Javelin has today mentioned that order. It has done so in light of a preliminary dealing with the Court's registry. Suffice to say, a question has arisen as to whether the task of fixing costs ought to have been assigned to the Registrar. A further question has arisen as to whether, as the order is presently framed, Hoop & Javelin would be entitled forthwith to enter judgment against Intabill Inc in respect of its claim and liquidated damages and interest upon its filing an affidavit which complied with O 35A r 3(3) of the Federal Court Rules, or whether it could only enter judgment after the Registrar had fixed costs or assuming that there were no such power and the order had to be varied after the costs had been taxed. 3 Hoop & Javelin's desire is, if so permitted by the rules, to be able to enter judgment for its claim and liquidated damages and interest without having to await any delay that might occur whilst taxation of costs occurred. That is, with respect, an understandable commercial consideration. On reflection, the scheme of O 35A r 3(2)(b) of the Federal Court Rules looks to be to pose, so far as costs are concerned, an alternative. That alternative is a fixing of costs by the court and here that seems to me to mean a judge or to be taxed. In other words, I am persuaded that it was not appropriate to consign or at least even to envisage the consigning of costs to be fixed by the Registrar. 4 There was a suggestion made on the mention that I might nonetheless be disposed to fix costs myself. The difficulty with that, and it is a significant difficulty, is that Intabill Inc is entitled to an opportunity to be heard in relation to any fixing of costs. It would axiomatically, in the taxation process, be afforded such an opportunity. I do not have before me material which would go to detailing the amount of the costs of Hoop & Javelin in any itemised way. Nor, more fundamentally, does Intabill have the benefit of such material. For that reason, I am not disposed to fix costs. 5 However, Hoop & Javelin, having quite properly raised the question of provision in respect of costs in light of the form of the order of 12 February 2010 as it presently stands, there is a need to vary the provision made on 12 February 2010. I note that the orders made on 12 February 2010 have not been entered as yet. As a matter of construction, a construction which would promote an ability on the part of a person who has proved an entitlement to default judgment, to enter judgment for the ascertainable claim, liquidated damages and interest upon the filing of an affidavit of proof without having to await taxation of costs, has much to recommend it. It seems to me that O 35A r 3(2) admits of either or each of a conjunctive and disjunctive application. By that I mean that it seems to me that it is permissible under the terms of O 35A r (3)(2)(b) to grant leave to an applicant to enter judgment against a Respondent for the debt or liquidated damages and interest and then separately to grant leave to enter judgment to that applicant for costs to be taxed. That is the course that, upon reflection, I regard as "appropriate" in this matter. That being so, it is necessary to vary the terms of the order made on 12 February in this regard: 1. I vacate the orders made in para (1) of the order of 12 February 2002. 2. In lieu thereof, I grant leave to the applicant to enter judgment against a second respondent for the debt and liquidated damages and interest. 3. Leave is separately granted to the Applicant to enter judgment against the second respondent for costs including costs of and incidental to the default judgment application and of today's application for variation to be taxed. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 5 March 2010