Federal Court of Australia

Nanshan (Aust) Golf Resort Pty Ltd v Earth Fill Group Pty Ltd (No 2) [2026] FCA 157

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 5.23 of the Federal Court Rules 2011 (Cth), there be default judgment in favour of the applicant against the second respondent, for damages in a sum to be assessed.

2.    Pursuant to r 28.61 of the Rules, the assessment of damages be referred to a Registrar of the Court acting as a referee, for report.

3.    The proceeding be listed for hearing on a date to be advised for consideration of:

(a)    the adoption of the referee’s report on the assessment of damages; and

(b)    the disposition of any remaining issues in the proceeding.

4.    The second respondent pay the applicant’s costs of the applicant’s interlocutory application filed on 2 February 2026, as agreed or taxed.

5.    There be liberty to apply on three days’ notice.

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

REASONS FOR JUDGMENT

(Delivered extempore and revised)

GOODMAN J:

1    This is an application under r 5.23(2)(d) of the Federal Court Rules 2011 (Cth) for an order for default judgment against the second respondent (Mr Mardian) with damages to be assessed.

2    The present application was originally an application for default judgment against both the first respondent (Earth Fill Group Pty Ltd) and Mr Mardian. However, the applicant proceeds only as against Mr Mardian in circumstances where it has learnt that Earth Fill entered into liquidation on 4 February 2026 and thus the proceeding as against Earth Fill is stayed by operation of s 471B of the Corporations Act 2001 (Cth).

3    Rule 5.23(2)(d) provides:

5.23    Orders on default

…

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

…

(d)    an order giving judgment against the respondent for damages to be assessed, or any other order; …

4    Mr Mardian is in default in that he has failed to act as required by the Rules (see r 5.22(a)), in failing to file an address for service (rr 5.02, 11.01 and 11.06); or to file a defence to the applicant’s statement of claim within 28 days after service of the statement of claim (r 16.32), in circumstances where there has been deemed service of the originating application and the statement of claim on 16 October 2025, for the reasons set out in Nanshan (Aust) Golf Resort Pty Ltd v Earth Fill Group Pty Ltd [2025] FCA 1377 (Nashan (No 1)). Mr Mardian is also in default because he has taken no active step in the proceeding (r 5.22(c) and (d)).

5    It follows that the Court’s discretion to make an order pursuant to r 5.23(2)(d) has been enlivened.

6    The relevant principles concerning the exercise of that discretion were summarised by Justice Burley in EV20 Consulting Group Pty Ltd v Paperless Warehousing Pty Ltd [2025] FCA 328 at [14]:

The principles relevant to the exercise of discretion under FCR r 5.23 may be summarised as follows:

(1)    the power invoked by the Applicants is discretionary, it should be exercised cautiously;

(2)    the discretion to enter a default judgment is enlivened when an applicant or cross-claimant applies to the Court for such an order and where a respondent is in default;

(3)    the rule must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable, by even the most conscientious parties and their lawyers, and of the likely serious consequences to an applicant of staying or dismissing a claim;

(4)    cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to cooperate with the Court and the other party or parties in having the matter ready for trial within an acceptable period provide an example where the exercise of the discretion may be appropriate;

(5)    the requirement imposed by FCR r 5.23 is not that an applicant prove by way of evidence the claim sought to be advanced; the requirement is that the Court needs to be satisfied on the face of the statement of claim that the applicant is entitled to the relief claimed. In this regard, FCR r 5.23 will be met upon the Court being satisfied that relief could be granted on the face of the pleading;

(6)    in addition to the facts alleged in the statement of claim, the Court may permit recourse to further limited evidence but may not admit evidence that would alter the case as pleaded;

see Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [20]–[25] (Flick J); Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 at [13]–[14] (Yates J); Secretary, Department of Health v Evolution Supplements Australia Pty Ltd [2021] FCA 74 at [10]–[15] (Burley J); Hugo Boss AG v Hardge [2024] FCA 1325 at [20] (Neskovcin J).

(emphasis in original)

7    I am satisfied that the discretion ought be exercised in the manner sought by the applicant, for the following reasons.

8    First, I am satisfied that on the face of the statement of claim (i.e. on the basis that the facts alleged therein are taken to have been admitted – see Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 at [14] (Yates J); Paco Nominees Pty Ltd v Ella Secret Australia Pty Ltd [2025] FCA 366; (2025) 187 IPR 177 at 181 [11] (Raper J)) that the applicant is entitled to damages pursuant to s 236 of the Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth), in respect of alleged contraventions of s 18 of the ACL.

9    The statement of claim contains allegations that, relevantly:

(1)    the applicant is and at all material times was the owner and operator of the Riverside Oaks Golf Resort;

(2)    Mr Mardian was at all material times the sole director and shareholder of Earth Fill, a company which operated a business providing earth filling services;

(3)    between 20 July 2022 and February 2023, Earth Fill and Mr Mardian made representations in trade or commerce that the fill material to be delivered and installed by Earth Fill at an embankment at the Resort (Site) pursuant to a contract to be made (and later made) between the applicant and Earth Fill:

(a)    would be Virgin Excavated Natural Material (VENM);

(b)    had been or would be tested prior to delivery to the Site to ensure that it was VENM;

(c)    was or would be compliant with identified Australian Standards;

(4)    between 19 October 2022 and February 2023, Earth Fill delivered and installed fill material at the Site, which was:

(a)    not VENM;

(b)    contaminated by asbestos;

(c)    not compliant with the identified Australian Standards;

(5)    to the extent that the representations were representations as to future matters, Earth Fill and Mr Mardian did not have reasonable grounds for making the representations and as such those representations were misleading or deceptive or likely to mislead or deceive;

(6)    to the extent that the representations were not representations as to future matters, the representations were misleading or deceptive or likely to mislead or deceive;

(7)    as a result, each of Earth Fill and Mr Mardian contravened s 18 of the ACL;

(8)    by reason of such contraventions, the applicant has suffered and will suffer loss and damage in the form of rectification costs and potential exposure to fines and penalties;

(9)    Mr Mardian was involved in the making of the contraventions of s 18 of the ACL by Earth Fill; and

(10)    pursuant to s 236 of the ACL, the applicant is entitled to recover the amount of the loss it has suffered from Earth Fill and Mr Mardian (as persons who contravened s 18 of the ACL) and Mr Mardian (as a person who was involved in the contraventions of s 18 of the ACL by Earth Fill).

10    Secondly, for the reasons set out in Nashan (No 1) at [5] and from emails tendered today, I am satisfied that Mr Mardian is on notice of the proceeding and of this application.

11    Finally, as the Full Court (Halley, Meagher and Wheatley JJ) explained in Monks v Pieman Resources Pty Ltd [2025] FCAFC 121 at [63]: “[t]he entry of default judgment against parties who have materially failed to act in a manner that was consistent with the resolution of disputes as quickly, inexpensively and efficiently as possible, without an adequate explanation, is giving effect to the overarching purpose” in s 37M of the Federal Court of Australia Act 1976 (Cth).

Associate:

Dated:    25 February 2026