Smart Corporation Pty Ltd as Trustee for Investment Trust No 3 T/As Australian 4WD Hire v Peng [2019] FCA 984

FEDERAL COURT OF AUSTRALIA

Smart Corporation Pty Ltd as Trustee for Investment Trust No 3 T/As Australian 4WD Hire v Peng [2019] FCA 984 File number(s): QUD 564 of 2017

Judge(s): DERRINGTON J

Date of judgment: 20 June 2019

Catchwords: PRACTICE AND PROCEDURE – no appearances – failure to prosecute – no steps taken for over one year – otherwise discontinued – not served on remaining respondent – proceeding dismissed

Legislation: Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 (Cth)

Date of hearing: 20 June 2019

Registry: Queensland

Division: General Division

National Practice Area: Commercial and Corporations

Category: Catchwords

Number of paragraphs: 6

Counsel for the Applicant: The Applicant did not appear

Counsel for the Third Respondent: The Third Respondent did not appear

ORDERS QUD 564 of 2017

BETWEEN: SMART CORPORATION PTY LTD (ACN 134 192 297) AS TRUSTEE FOR INVESTMENT TRUST NO 3 T/AS AUSTRALIAN 4WD HIRE ABN 96 073 408 158 Applicant

AND: MAOXIAN (LEO) PENG Third Respondent

JUDGE: DERRINGTON J DATE OF ORDER: 20 JUNE 2019

THE COURT ORDERS THAT:

1. Subject to order 2, the proceeding is dismissed. 2. Order 1 be stayed with liberty to apply until 4.00pm on 4 July 2019. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J: 1 This proceeding was commenced by an originating application on 26 October 2017. Three respondents were named in that originating application. On 13 December 2017 the proceeding was discontinued against the first respondent by the filing of a notice of discontinuance, and on 21 February 2018 the proceeding was discontinued against the second respondent by order. Since that time, no steps have been taken in the action. There is no indication that the third respondent has been served with the originating application. 2 The proceeding was called on for a case management hearing today to address the progress of the application. On 12 June 2019, the applicant was notified via its solicitor of today's hearing. This followed previous correspondence from the Court's Registry extending back to February 2018 in relation to the status of the proceedings as against the third respondent. Yesterday, on 19 June 2019, the solicitors for the applicant filed a notice of ceasing to act, apparently in accordance with the Federal Court Rules 2011 (Cth). 3 When the matter was called on today, there were no appearances. 4 A party, and in this case the applicant, as he is apparently no longer a represented party, must attend a hearing for the proceeding under r 4.04(2). A party is in default if that party fails to attend a hearing or prosecute or defend the proceeding with due diligence under rr 5.22(c) and (d). 5 This Court is entitled to exercise a power in the rules at any stage on its own initiative, see r 1.40(a), including the powers under r 5.23(1)(b)(i), and make any order that the Court considers appropriate in the interests of justice: see r 1.32 and s 23 of the Federal Court of Australia Act 1976 (Cth). 6 Given the absence of any attempt to prosecute the proceedings for over a year, the failure of any party to appear and the apparent absence of any countervailing factors in the interests of justice, the appropriate order is that the proceeding be dismissed. However, in case a good reason can be shown for the failure to appear today, it is appropriate to stay the order dismissing the proceedings for a period of 14 days so that any application to vary or vacate that order may be made. 7 In the result, the orders of the Court will be: (1) Subject to order 2, the proceeding is dismissed. (2) Order 1 be stayed with liberty to apply until 4.00pm on 4 July 2019. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.