Sensation Yachts Limited v The Ship Texas [2011] FCA 1058

FEDERAL COURT OF AUSTRALIA

Sensation Yachts Limited v The Ship Texas [2011] FCA 1058 Citation: Sensation Yachts Limited v The Ship Texas [2011] FCA 1058

Parties: SENSATION YACHTS LIMITED v THE SHIP TEXAS

File number: VID 781 of 2002

Judge: TRACEY J

Date of judgment: 14 September 2011

Catchwords: PRACTICE AND PROCEDURE – dismissal for want of prosecution

Legislation: Federal Court Rules 2011 rr 1.40, 5.22, 5.23

Date of hearing: Heard on the papers

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 16

Counsel for the Defendant: The Defendant did not appear

Counsel for the Plaintiff: The Plaintiff did not appear

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 781 of 2002

BETWEEN: SENSATION YACHTS LIMITED

Plaintiff

AND: THE SHIP TEXAS

Defendant

JUDGE: TRACEY J DATE OF ORDER: 14 SEPTEMBER 2011 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The second cross-claim by Sensation Yachts Limited against John Harrhy Consulting Limited be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 781 of 2002

BETWEEN: SENSATION YACHTS LIMITED

Plaintiff

AND: THE SHIP TEXAS

Defendant

JUDGE: TRACEY J DATE: 14 SEPTEMBER 2011 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This proceeding was commenced by writ on 14 November 2002. It was allocated to the docket of Ryan J. 2 It is not necessary to essay all that has since occurred. Suffice it to say that a statement of claim was filed on 20 December 2002. Subsequently there was a defence, various amended statements of claim and amended defences and various cross-claims and defences to cross-claims. 3 On 21 October 2005 Ryan J ordered by consent: "1. That the plaintiff's action against the defendant, the Ship "Texas" be dismissed. 2. The first cross-claim by Paymetal Limited against Sensation Yachts Limited be dismissed. 3. There be no order as to costs in consequence of paragraph 1 or paragraph 2 of this Order. 4. There be liberty to any party to apply on not less than 48 hours notice in writing to the other parties. 5. The second cross-claim by Sensation Yachts Limited against John Harrhy Consulting Ltd stand over to a date to be fixed for assessment of damages." 4 The second cross-claim, referred to in paragraph 5 of his Honour's orders, was the only part of the proceeding which, in October 2005, remained to be determined. 5 For reasons which do not appear on the file Sensation Yachts Limited ("Sensation Yachts") did not press its cross-claim against John Harrhy Consulting Limited. 6 On 9 November 2006 Ryan J ordered that a hearing of the proceeding which had been listed for 23 November 2006, be adjourned to a date to be fixed not before May 2007. The date subsequently fixed was 23 May 2008. 7 On 21 May 2008 Ryan J ordered that the hearing fixed for 23 May 2008 be adjourned to a date to be fixed. 8 The last document on the file is a notice from the solicitors, Dibbs Abbott Stillman, who had been acting for Sensation Yachts, advising that they had ceased to act. The notice gave an address in Auckland, New Zealand for future communication with the company. The notice was dated 18 July 2008. A copy of it was served on the defendant to the cross-claim. 9 The file remained dormant until Ryan J retired from the Court on 2 June 2011. The proceeding was then transferred to my docket. 10 An examination of public records in New Zealand disclosed that Sensation Yachts had been placed in liquidation and receivership pursuant to an order made by the New Zealand High Court on 31 July 2009. The appointed liquidators were Ms P Finnigan and Mr B van Delden of McDonald Vague in Auckland. 11 At my direction the Acting District Registrar wrote to Ms Finnigan and Mr van Delden on 17 June 2011. They were advised of the extant proceeding and that no further step had been taken since Dibbs Abbott Stillman had ceased to act. They were further advised that I was considering dismissing Sensation Yachts' claim against John Harrhy Consulting Limited for want of prosecution. They were invited to inform the Court if they wished to be heard in opposition to this step being taken. No response to this letter was received. 12 The Deputy District Registrar wrote to Ms Finnigan and Mr van Delden again on 1 August 2011 seeking an urgent response the earlier letter. No reply had been received by 19 September 2011. 13 Rule 5.22(d) of the Federal Court Rules 2011 provides that a party is in default if the party fails to prosecute a proceeding with due diligence. In such cases Rule 5.23(1) provides that a respondent may apply to the Court for an order that the proceeding be dismissed. Rule 1.40 provides that the Court may exercise any power conferred on it by the Rules on its own initiative. 14 It is now almost six years since Sensation Yachts took any step, apart from seeking adjournments, in the proceeding. The last adjournment was granted in May 2008. Since then Sensation Yachts has been placed in liquidation and receivership. Despite attempts by the Court to alert the liquidators to the existence of the outstanding cross-claim and to ascertain their attitude to the continuance of the proceeding, no response has been received. The cross-defendant has taken no step in the three years which have passed since the proceeding was last before the Court for directions. It has not applied to have the cross-claim dismissed because of Sensation Yachts' failure to put on the material necessary for damages to be assessed. 15 Whilst an order for summary dismissal of a claim will not lightly be made Sensation Yachts has evinced no interest in prosecuting its cross-claim for six years. Its disinterest is matched by that of the cross-defendant. Sensation Yachts was placed in liquidation in 2009 and the liquidators have not, despite invitations to do so, chosen to communicate with the Court about the further conduct of the proceeding. That which remains of the proceeding cannot be allowed to remain indefinitely unresolved. These considerations set the present matter apart from cases in which a plaintiff wishes to proceed with a claim but has failed, for some reason, to meet deadlines imposed by the Rules or orders of the Court. 16 In the circumstances, I consider that the appropriate course is that the second cross-claim by Sensation Yachts against John Harrhy Consulting Limited should be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.