Federal Court of Australia

Brereton (Liquidator) v Gatto, in the matter of Get Concreted Pty Ltd (In Liquidation) [2026] FCA 1413

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 5.23 of the Federal Court Rules 2011 (Cth), judgment be entered for the plaintiffs against the defendant as a debt due to the plaintiffs in the amount of $280,732.09, being $259,588.76 plus interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) at the rate set out in para 2.2 of the Interest on Judgments Practice Note dated 18 September 2017 in the amount of $21,143.33.

2.    The defendant pay the plaintiffs’ costs of the proceedings, including the interlocutory process, by way of lump sum.

3.    The plaintiffs file an affidavit by 25 September 2026 in relation to the quantification of the lump sum costs order, which I will determine on the papers.

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

REASONS FOR JUDGMENT

Delivered ex tempore

JACKMAN J:

1    By interlocutory process filed on 11 September 2026, the plaintiffs seek an order for default judgment pursuant to r 5.23(2)(c) of the Federal Court Rules 2011 (Cth) (Rules) against the defendant, Mr Daniel Gatto, for the sum of $259,588.76 (Sum), together with $21,143.33 in interest calculated on the Sum from 11 September 2025 (being the date of the first demand by the plaintiffs to Mr Gatto) pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) at the rate set out in para 2.2 of the Interest on Judgments Practice Note dated 18 September 2017.

2    Mr Gatto was the sole director of the second plaintiff, Get Concreted Pty Ltd (in liquidation) (Company), from its incorporation on 13 July 2009 to the date of liquidation. On 29 July 2024, the first plaintiffs, Mr Brereton and Mr Wengel (together, Liquidators) were appointed as joint and several liquidators of the Company.

3    By originating process, the Liquidators commenced this proceeding on 26 June 2026 against Mr Gatto for a declaration that Mr Gatto breached his duty as a director to prevent the Company from incurring debts at a time when it was insolvent pursuant to s 588G of the Corporations Act 2001 (Cth) (Act) and an order that Mr Gatto pay the Sum, being an amount equal to the loss suffered by creditors of the Company, pursuant to s 588M of the Act.

4    On 21 July 2026, the originating process was personally served on Mr Gatto by a process server.

5    On 6 August 2026, I made orders that the proceeding continue on pleadings. On the same date, the Liquidators filed and served the Statement of Claim.

6    On 16 September 2026, the interlocutory process was served on Mr Gatto.

7    Subrule 5.23(2)(c) of the Rules provides relevantly that where a respondent is in default, an applicant may apply to the Court, if the Court has ordered that the proceeding continue on pleadings, for 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.

8    The power to award default judgment is of a discretionary nature which ought to be exercised with caution, as granting such relief will award the applicants success in the proceeding without examining the merits of the claim by reference to evidence before the Court.

9    In circumstances where an application for default judgment has been made in a proceeding where the Court has ordered that the proceeding continue on pleadings, the Court’s task is not to conduct a trial of the proceeding, but to determine whether the pleaded facts, if accepted, disclose a cause of action entitling the applicant to the relief sought: Scott v Khouri, In the matter of Skycorp Construction Group Pty Ltd (in liq) [2026] FCA 636 at [8]–[9], and the cases cited there. That is, the requirement is not that an applicant prove by way of evidence the claim that is sought to be advanced. Rather, 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.

10    In seeking the relief the subject of the Statement of Claim, the plaintiffs plead with sufficient particularity the elements of the claim, being that:

(a)    Mr Gatto was a director of the Company at all material times from 13 July 2009 to the date of liquidation;

(b)    between 13 July 2009 and 29 July 2024, the Company incurred debts totalling $259,588.76, being the Sum;

(c)    since 13 July 2009 and during the time the debts the subject of the Sum were incurred, the Company failed to keep written records pursuant to s 286 of the Act;

(d)    the Company was insolvent from at least 13 July 2009 either by operation of the presumption of insolvency under s 588E(4)(b) of the Act, or within the meaning of s 95A of the Act;

(e)    at the time the debts the subject of the Sum were incurred, there were reasonable grounds for suspecting the Company’s insolvency; and

(f)    Mr Gatto was aware, or a reasonable person in his position would have been aware, of those grounds, and failed to prevent the Company from being insolvent.

11    These matters, in the absence of any defence filed by Mr Gatto, are taken to be admitted. Accordingly, I am satisfied that the plaintiffs are entitled to the relief they seek.

12    On 21 July 2026, when the process server tried to serve Mr Gatto, he denied that he was Daniel Gatto (aka Danny Gatto) and threw the Court documents back through the car window onto the ground.

13    On 6 August 2026, I made an order for Mr Gatto to file and serve his defence to the Statement of Claim by 3 September 2026. The orders of 6 August 2026 were served on Mr Gatto on 10 August 2026. Mr Gatto failed to comply with that order and is therefore in default for the purposes of r 5.23 of the Rules.

14    The Liquidators have attempted to contact Mr Gatto, either by their solicitors or themselves, in relation to the proceeding to no avail on 11 occasions between 23 July 2026 and 16 September 2026. Mr Gatto has failed to respond either to the Liquidators or their solicitors and has failed to engage with this proceeding in any meaningful way, let alone at all.

15    The proceeding has been listed for case management hearings before the Court on 6 August 2026 and 9 September 2026. Mr Gatto has failed to appear at any of those case management hearings, despite being notified of each listing, and has failed to provide any explanation to the Court or the parties for his absence. Similarly, Mr Gatto has failed to appear today despite notice having been given of today’s hearing of the interlocutory process.

16    The procedural history of this matter demonstrates non-compliance with Court orders and a total failure to engage with the parties to the dispute, despite repeated notice of the proceeding processes and listings. That conduct should not continue to occupy the Court’s time and resources, nor those of the plaintiffs.

17    Accordingly, I am satisfied that default judgment should be entered against Mr Gatto, together with interest and costs.

Associate:

Dated:    24 September 2026