FEDERAL COURT OF AUSTRALIA

Australian Motor Finance Limited (Receivers and Managers appointed) v Angeleri (No 2) [2009] FCA 1046

PRACTICE AND PROCEDURE – Default judgments – Freezing Orders – Abridgement of time for service

Federal Court Rules, O 19 r 3, 35A

AUSTRALIAN MOTOR FINANCE LIMITED (RECEIVERS AND MANAGERS APPOINTED) ACN 088 694 188 and AUSTRALIAN MOTOR FINANCE CORPORATE PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) ACN 102 903 748 v DENIS ANGELERI, IAN RUSSELL BRINDLEY, MICHAEL O'BRIEN, BIORURAL PTY LTD ACN 096 395 569, AUS-ASIA AQUACULTURE LTD ACN 091 621 411, WATER RECYCLING AUSTRALIA LTD ACN 081 379 464, CREDIT STARTERS PTY LTD ACN 075 212 976, DRIVETIME LEASING PTY LTD ACN 129 998 241, DRIVETIME AUTO & FINANCE (IP) HOLDINGS PTY LTD ACN 122 765 815, EUROQUEST CORPORATE PTY LTD ACN 007 126 856, STRUCTURED INVESTMENT CORPORATION PTY LTD ACN 078 897 855, V8 SUPER LOANS PTY LTD ACN 118 586 226, DRIVETIME AUTO & FINANCE (DANDENONG) PTY LTD ACN 122 222 922 and AUSTRALIAN MOTOR FINANCE GROUP LIMITED ACN 121 257 412

VID 47 of 2009

TRACEY J

15 SEPTEMBER 2009

MELBOURNE

THE COURT DIRECTS THAT:

1.      The time prescribed by O 19 r 3 for the service of the Plaintiffs’ Motion, notice of which was given 9 September 2009, be abridged to 11 September 2009.

AND THE COURT ORDERS THAT:

2.      Pursuant to order 35A, Rule 3(2)(c) of the Federal Court Rules, as against the Sixth Defendant:

2.1       judgment be entered in favour of the Second Plaintiff in the amount of $2,413,176.32 together with interest accruing on that sum on and from 16July 2009;

2.2       it be restrained from in any way dealing with, or disposing of any of its assets until payment of the amount referred to in paragraph 2.1; and

2.3       it pay the Plaintiffs’ costs of the proceeding (including the Motion, notice of which was given on 9 September 2009) on an indemnity basis with such costs to be agreed or taxed.

3.      Pursuant to Order 35A, Rule 3(2)(c) of the Federal Court Rules, as against the Tenth Defendant:

3.1       judgment be entered in favour of the Second Plaintiff in the amount of $53,663.46 together with interest accruing on that sum on and from 16 July 2009;

3.2       it be restrained from in any way dealing with or disposing of any of its assets until payment of the amount referred to in paragraph 3.1; and

3.3       it pay the Plaintiffs’ costs of the proceeding (including the Motion, notice of which was given on 9 September 2009) on an indemnity basis with such costs to be agreed or 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 eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          By notice of motion dated 9 September 2009 and made returnable this morning, the plaintiffs apply for orders under O 35A of the Federal Court Rules.  In substance, the orders sought are that judgment be entered for the payment of monetary amounts claimed against the Sixth and Tenth Defendants in the proceeding.  The orders are sought on the ground that those defendants have failed to file a defence to the allegations made against them in the plaintiffs’ statement of claim. 

2                          In that statement of claim dated 31 July 2009, the plaintiffs allege - and I here refer to paragraphs 50 to 57 of the statement of claim – that over a period of time, the First, Second and Third Defendants caused the Second Plaintiff to pay to the Sixth Defendant an amount of some $2.23 million.  The money was obtained by the Second Plaintiff from a secured creditor of the Plaintiffs, ABL Nominees Pty Ltd to support fictitious loans allegedly granted to various individuals to purchase motor vehicles.  In fact, there were no such individuals and there were no such loans. 

3                          The Sixth Defendant was effectively controlled by the First Defendant, Mr Denis Angeleri, and Mr Angeleri has admitted in his defence that he controlled the Sixth Defendant’s account into which payments were made in the course of a drawn-out series of fraudulent transactions.  It may readily be inferred that Mr Angeleri controlled the flow of funds from the Second Plaintiff’s account to that of the Sixth Defendant and that he well knew that the Sixth Defendant was not entitled to the funds which had been transferred in the manner I have described.  The amount sought in the amended application is $2,143,176.32, that being the result of adding the monies transferred and not recovered and interest due thereon.  The calculations are explained in schedule C to the Statement of Claim. 

4                          In the case of the Tenth Defendant, the claims made in paragraphs 58 to 65, inclusive, of the Statement of Claim are for a considerably lesser sum.  The moneys involved were obtained by the Tenth Defendant in substantially the same way as the funds obtained by the Sixth Defendant, namely the creation of fictitious loans which led to the drawing down of funds from the Second Plaintiff and the transfer of those funds, under Mr Angeleri’s supervision, to the Tenth Defendant, of which he was one of three directors.  Mr Angeleri admitted that he controlled the Tenth Defendant’s account into which the payments were made. The amount involved is $53,663.46, which represents the amount outstanding from the funds transferred in the manner I have described, plus interest, having taken account of some refunds which the Tenth Defendant had earlier made.

5                          Order 35A of the rules provides for the entering of a default judgment in circumstances such as the present.  By O 35A, rule 2, subrule (2) and paragraph (b) a respondent is in default if that respondent fails to file a defence within the appropriate time and by rule 3, subrule (2), paragraph (c), the Court, in such circumstances, is empowered to give judgment against the respondent for such relief as the applicant appears to be entitled on the statement of claim, and the Court is satisfied it has power to grant that relief.

6                          I am satisfied that both the Sixth and Tenth Defendants have been served with the Plaintiffs’ amended application, the Statement of Claim and the notice of motion seeking default judgments against them.  In the circumstances that I have explained, in the absence of defences, and in the absence of appearances by either the Sixth or Tenth Defendant this morning, I propose to make orders under O 35A of the Rules in substantially the terms sought by the Plaintiffs.  There will also be a direction that the time prescribed by O 19, rule 3 for the service of the Plaintiffs’ Notice of Motion be abridged to 11 September 2009.

Associate:

Dated:         15 September 2009