FEDERAL COURT OF AUSTRALIA

Sovereign Point Pty Ltd v Gu [2019] FCA 1753

ORDERS

THE COURT ORDERS THAT:

1.    There be judgment for the applicant against the first respondent, pursuant to r 5.23(2)(c) of the Federal Court Rules 2011 (Cth) for the relief claimed in the Amended Statement of Claim filed 22 August 2019 nature of compensation pursuant to s 1317H of the Corporations Act 2001 (Cth).

2.    There be judgment for the applicant against the second respondent, pursuant to r 5.23(2)(c) of the Federal Court Rules 2011 (Cth) for the relief claimed in the Amended Statement of Claim filed 22 August 2019 in the form of equitable compensation.

3.    The matter be referred to a Registrar of the Court for determination of the quantum of compensation.

4.    The first and second respondents are to pay the applicant’s costs of and incidental to the proceeding as against those respondents, such costs to be taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

DAVIES J:

1    The applicants have applied for default judgment against the first and second respondents pursuant to r 5.23(2)(c) of the Federal Court Rules 2011 (Cth) which provides:

…

(2)    If a respondent is in default, an applicant may apply to the Court for:

…

(c)    if the proceeding was started by an originating application supported by a statement of claim, or if the Court has ordered that the proceeding continue on pleadings – an order giving judgment against the respondent for the relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled;…

2    Rule 5.22 specifies when a party is in default:

A party is in default if the party fails to:

(a)     do an act required to be done, or to do an act in the time required, by     these Rules; or

(b)    comply with an order of the Court; or

(c)    attend a hearing in the proceeding; or

(d)    prosecute or defend the proceeding with due diligence.

3    The applicants rely upon the following defaults by the first and second respondents: the failure of the first and second respondents to attend at case management hearings conducted in the proceeding on 7 June 2019, 19 July 2019 and 16 August 2019, and the failure of those respondents to file and serve an amended defence to the amended statement of claim by 27 September 2019, pursuant to orders made on 16 August 2019.

4    The relevant legal principles to apply in an application pursuant to r 5.23(2)(c) were conveniently set out in a recent decision of Yates J in Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 at [13]–[14]:

The power to give judgment against a defaulting party is undoubtedly discretionary. The discretion must be exercised cautiously. Where the defaulting party is a respondent to a pleaded claim, the giving of judgment for final relief on the application will deliver complete success to the applicant without investigation of the merits of the pleaded claim: ACOHS Pty Ltd v Ucorp Pty Ltd [2009] FCA 577 at [27]. There is no requirement that the act or acts of default be intentional or amount to contumelious conduct. There is no requirement that the act or acts of default result in inordinate or inexcusable delay. That said, such features, if present, will be relevant to the exercise of the Court’s discretion. So too will conduct that persuades the Court that the defaulting party is manifesting an inability or unwillingness to cooperate with the Court and the other party or parties to the proceeding.

Rule 5.23(2)(c) requires the Court to be satisfied that the applicant is entitled to the relief claimed in the statement of claim. This requirement has been interpreted as meaning that the Court must be satisfied that “on the face of the statement of claim” the applicant is entitled to the relief that is claimed. It is not a requirement that the applicant prove its claim by way of evidence. Put another way, the facts alleged in the statement of claim are taken to have been admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; 161 FCR 513 at [42]. If, on inspection of the statement of claim, the Court is satisfied that the applicant would be entitled to the relief sought then this requirement of r 5.23(2)(c) will be met: CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170 at [18]-[19]; Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [23]. The Court may permit further evidence to be adduced, but not evidence that would alter the pleaded case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; 236 ALR 665 at [45], [48]-[50]; United Broadcasting International Pty Ltd v Turkplus Pty Ltd (No 2) [2010] FCA 1413 at [42]-[44]; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; 195 FCR 1 at [62]-[63].

5    The application for judgment in default was supported by the affidavit of Miranda Ellen Bordignon affirmed 10 October 2019 and the affidavits of service of Madeleine Grace Werka affirmed 8 October 2019 and Amy Marie Depasquale affirmed 24 October 2019. There has been no appearance by the first and second respondents today in opposition to the application, nor has any material been filed by the first and second respondents in opposition to default judgment being made. I am satisfied on the basis of the affidavits of service that the respondents have been served with the application and supporting material. I am also satisfied that the first and second respondents are in default in failing to appear at the three case management hearings and to comply with the order of the Court to file an amended defence to the amended statement of claim.

6    The first and second respondents, by their defaults, have not prosecuted their defence with due diligence and have indicated an unpreparedness to participate in the proceedings and to cooperate with the conduct of this proceeding. In the circumstances, I am satisfied that this is an occasion where it is appropriate for the Court to consider exercising the power under r 5.23(2)(c) to give judgment against the first and second respondents.

7    I am also satisfied on the face of the amended statement of claim that the applicant is entitled to the relief claimed against the first and second respondents. The first respondent is sued for breaches of statutory and fiduciary duties arising out of alleged unauthorised transfers of funds. The second respondent is sued for alleged breach of fiduciary duties owed to the applicant as a joint venture partner by reason of unauthorised transfers of funds. Each of the elements of the claims against the first and second respondents are sufficiently pleaded and supported by particulars. As against the first respondent, the applicant has elected relief in the form of compensation, pursuant to s 1317H of the Corporations Act 2001 (Cth), and as against the second respondent, equitable compensation. Both forms of relief are available to the applicant in relation to the causes of action upon which they sue.

8    For those reasons, I will make the orders sought.

Associate:    

Dated:    28 October 2019