Federal Court of Australia

King (Trustee) v Hockings (No 2) [2026] FCA 1537

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 3 July 2026 be dismissed.

2.    The applicant serve a sealed copy of these orders and the accompanying reasons for judgment on the respondent by 4.00pm on 21 October 2026 by the means set out in order 2(a) of the orders of 23 March 2026.

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

REASONS FOR JUDGMENT

STELLIOS J:

1    The applicant (trustee) was appointed the trustee of the bankrupt estate of Silvana Liliana Wirepa on 3 September 2024. It is alleged that, on 11 September 2024, Ms Wirepa transferred the amount of $95,000 (funds) from her bank account to the respondent, Mr Hockings.

2    By originating application and statement of claim, the trustee claims declarations that the transfer of the money from Ms Wirepa to Mr Hockings is void and that the trustee is entitled to the whole of the funds; an order that Mr Hockings pay the funds to the trustee; and orders for interest, costs and interest on costs.

3    On 23 March 2026, I made orders for substituted service. The reasons for making those orders were published as King (Trustee) v Hockings [2026] FCA 311, and these reasons should be read together with those earlier reasons.

4    What is now before the Court is an interlocutory application pursuant to rr 5.23(2)(b) and 5.23(2)(c) of the Federal Court Rules 2011 (Cth) seeking the following orders on default:

(1)    a declaration that the transfer of the funds from Ms Wirepa to Mr Hockings is void;

(2)    a declaration that the trustee is entitled to the whole of the funds; and

(3)    judgment in favour of the trustee against Mr Hockings in the sum of $113,199.37.

5    The trustee also seeks an order for costs. The interlocutory application was supported by the affidavit of Alexander du Maurier, solicitor for the trustee, dated 3 July 2026, and five affidavits of service.

6    For the reasons that follow, the application is dismissed.

Background

Transfer of funds and action by trustee

7    Following the alleged transfer of the funds, on 20 December 2024, the trustee issued a notice to Mr Hockings stating that the funds vested in the trustee. The notice further stated that Ms Wirepa intended to annul her bankruptcy under s 153A of the Bankruptcy Act 1966 (Cth) and that Mr Hockings was on notice that he could not expend the funds until the trustee confirmed that annulment.

8    On 14 March 2025, the trustee issued a notice of demand purportedly under ss 129(4) and 129(4B) of the Act requiring Mr Hockings to pay the funds to the trustee. The notice was accompanied by a covering letter of the same date.

9    Also on 14 March 2025, the trustee issued a notice under s 77A of the Act for Mr Hockings to produce certain documents. On the same day, the trustee received two emails from Mr Hockings indicating, in short, that the trustee should not contact Mr Hockings again and that the funds were paid to him as a reimbursement for money lent to Ms Wirepa and for unpaid wages.

10    On 5 May 2025, the trustee issued a second notice under s 77A of the Act.

11    On 4 May 2026, Mr Hockings sent an email to Mr du Maurier setting out details of his relationship with Ms Wirepa, the thrust of which was that: (a) Ms Wirepa had exerted coercive control over Mr Hockings; (b) consequently, he agreed to receiving the funds; (c) the funds were accessed and used by Ms Wirepa for her own purposes; and (d) Mr Hockings transferred the amount of $52,480 back to Ms Wirepa. The transfers in and out of the relevant account were evidenced by bank statements sent by Mr Hockings to Mr du Maurier and annexed to Mr du Maurier’s affidavit. Mr Hockings also claimed that Ms Wirepa had access to his email account and would send emails in his name.

Proceeding in this Court

12    The trustee commenced this proceeding on 11 September 2025. As indicated earlier in these reasons, on 23 March 2026, I made orders for substituted service of the originating process. On the basis of affidavits of service affirmed, respectively, by Alexander Signorelli (a solicitor for the respondents) and Mr du Maurier, each affirmed on 8 April 2026, I am satisfied that the originating process and my substituted service orders and reasons were served in accordance with my orders.

13    On 3 July 2026, the respondents filed the present interlocutory application and the affidavit in support.

14    On 17 July 2026, I made timetabling orders, including for the filing and service by the parties of any evidence or written submissions and that the interlocutory application be listed for hearing at 10.15am on 30 September 2026.

15    On the basis of two further affidavits of service affirmed, respectively, by Mr Signorelli and Mr du Maurier on 8 July 2026, I am satisfied that the interlocutory application and supporting affidavit were served on Mr Hockings in accordance with the substituted service order that I made on 23 March 2026. Further, on the basis of an affidavit of service affirmed by Mr Signorelli on 23 July 2026, I am satisfied that my orders of 17 July 2026 were served on Mr Hockings in accordance with the substituted service order that I made on the same date.

16    Mr Hockings has not filed a defence in the proceeding, nor any evidence or submissions. He also failed to appear at the hearing.

17    The trustee submitted that Mr Hockings was in default under r 5.22 of the Rules because he has failed to:

(1)    file a notice of address for service in accordance with r 5.02 of the Rules;

(2)    file a defence in accordance with r 16.32 of the Rules; and

(3)    comply with my orders of 17 July 2026.

legal principles

18    The principles to be applied to applications for default judgment under r 5.23 of the Rules have been identified in a number of authorities: see, eg, Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 at [13]–[14] (Yates J); Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 at [19]–[26] (Flick J); Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; 236 ALR 665 at [45], [48]–[50] (Kiefel J, as her Honour then was). It is convenient to set out what was said about those principles by Halley J in Scottish Pacific Business Finance Pty Ltd v Qaqour, in the matter of Penny World Pty Ltd [2023] FCA 708 at [7]–[10]:

The power to give judgment against a defaulting party is 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: Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 at [13] (Yates J); ACOHS Pty Ltd v Ucorp Pty Ltd [2009] FCA 577 at [27] (Jessup J).

Rule 5.23(2)(c) of the Rules provides that the Court must be satisfied that the applicant for default judgment is entitled to the relief sought in the statement of claim. The Court must be satisfied that “on the face of the statement of claim” the applicant is entitled to the relief that has been claimed. An applicant is not required to prove its claim by way of evidence. The facts alleged in the statement of claim are taken to have been admitted: Chamberlain at [14] (Yates J) citing Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; 161 FCR 513 at [42] (Moore, Dowsett and Greenwood JJ).

It is relevant, but not necessary, for the exercise of discretion to establish (a) inordinate or inexcusable delay, (b) that the act or acts of default were intentional or amount to contumelious conduct, or (c) the defaulting party is manifesting an inability or unwillingness to cooperate with the Court and the other party or parties to the proceeding.: Chamberlain at [13] (Yates J).

The Court may, and often does, permit additional evidence which might support the existence of the claims or the exercise of the Court’s discretion whether to accede to the application for judgment, but not evidence that would alter the pleaded case: Project Noah Holdings Pty Ltd (in liq) v Jacka [2022] FCA 778 at [17] (Derrington J); Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427 at [45], [48]-[50] (Kiefel J, as her Honour then was).

19    As indicated by Halley J at [8] in Qaqour, when considering whether to give default judgment, attention must turn to the facts alleged in the statement of claim which are taken to have been admitted. That does not mean that additional evidence is not relevant. As Halley J said at [10], additional evidence might support the existence of the claim or be relevant to the exercise of discretion to give default judgment. Furthermore, as recognised by Gordon J in Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; 195 FCR 1 at [62], “where the relief is discretionary (including declarations, injunctions, pecuniary penalties), the Court is entitled, if not obliged, to receive materials relevant to the exercise of that discretion so long as that evidence does not contain evidence of additional facts which should have been pleaded in the claim”: see also Dataline at [48]–[51].

20    Thus, as a general proposition, whether a default judgment should be ordered will be determined on the pleadings. However, relevant evidence can be relied on in relation to a question of discretion to grant relief by way of default judgment.

Declaration that the transfer of the funds is void

21    Given what is required by the legal principles, I will start by setting out in full what has been pleaded in the statement of claim:

1. The Applicant:

a. is a natural person who is capable of suing;

b. is the trustee of the regulated debtor estate of Silvana Liliana Wirepa (Bankrupt); and

c. was appointed as trustee of the regulated debtor estate of Silvana Liliana Wirepa on 3 September 2024 (Appointment Date).

Particulars

i. Certificate of Appointment of Trustee dated 3 September 2024.

2. The Respondent is a natural person who is capable of being sued.

3. As at the Appointment Date, the property of the Bankrupt became vested in the Applicant as trustee of Bankrupt’s regulated debtor estate.

Particulars

i. Sections 58 and 116(1) of the Bankruptcy Act 1966 (Cth) (Act).

4. On 11 September 2024, which was after the Appointment Date, the Bankrupt caused the sum of $95,000.00 (Funds) to be transferred from her bank account to the Respondent’s bank account.

5. On 11 September 2024, the Respondent received the Funds from the Bankrupt.

6. The Funds are property divisible amongst the creditors of the Bankrupt.

7. The Respondent is not, at law, entitled to retain the Funds as against the Applicant.

8. On 20 December 2024, the Applicant put the Respondent on notice that he could not expend the Funds until the Applicant wrote to him confirming that the Bankrupt had annulled her bankruptcy.

Particulars

i. Notice from the Applicant to Respondent dated 20 December 2024.

9. Despite having expressed an intention to annul her bankruptcy, the Bankrupt has not annulled her bankruptcy.

10. Accordingly, on 14 March 2025, the Applicant issued a formal Notice of Demand pursuant to Sections 129(4) and 129(4B) of the Act to the Respondent, which required him to pay the Funds to the Applicant (14 March 2025 Notice).

Particulars

i. Notice pursuant to Section 129 of the Act from the Applicant to Respondent dated 14 March 2025.

11. On 14 March 2025, the Applicant issued a notice under Section 77A of the Act to the Respondent requiring him to produce certain books and records to the Applicant (First Section 77A Notice).

Particulars

i. Notice pursuant to Section 77A of the Act from the Applicant to Respondent dated 14 March 2025.

12. On 5 May 2025, the Applicant issued a second notice under Section 77A of the Act to the Respondent requiring him to produce certain books and records to the Applicant (Second Section 77A Notice).

Particulars

i. Notice pursuant to Section 77A of the Act from the Applicant to Respondent dated 5 May 2025.

13. By the date of this Statement of Claim, the Respondent has failed to deliver the books and records requested of him by the Applicant in the First Section 77A Notice and the Second Section 77A Notice.

14. By the date of this Statement of Claim, and despite the 14 March 2025 Notice, the Respondent has failed to pay the Funds to the Applicant.

Relief

15. In the premises of paragraphs 3 – 7 above, the Respondent has no right or interest in the Funds.

16. In the premises of paragraphs 3 – 7 and 10 above, the Funds are recoverable by the Applicant as a debt by action against the Respondent.

Particulars

i. Section 129(4A) of the Act.

17. In the premises of the foregoing, the Applicant is entitled to the following relief:

a. a declaration that the transfer of the Funds from the Bankrupt to the Respondent is void;

b. a declaration that Applicant is entitled to the whole of the Funds;

c. an order that the Respondent pay the Funds to the Applicant;

d. interest;

e. costs; and

f. interest on costs.

22    For now, I will address the matters that are relevant to the declaration that is sought that the transfer is void. The parts of the pleadings that are relevant to the relief directed to the recovery of the funds will be addressed later in these reasons.

23    The statement of claim pleads that, at the date of the trustee’s appointment, “the property of [Ms Wirepa] became vested in [the trustee] as trustee of [Ms Wirepa’s] regulated debtor estate”. The particulars referred to are ss 58 and 116(1) of the Act. The following may be noted:

(1)    Subsection 58(1)(a) provides that “the property of the bankrupt … vests forthwith in the … registered trustee”. The statement of claim pleads that the trustee is the trustee of the regulated debtor estate of Ms Wirepa. While that pleading is to be taken as admitted, I note that the certificate of the trustee’s appointment is in evidence.

(2)    The statement of claim pleads that Ms Wirepa caused the funds to be transferred from her bank account to Mr Hockings’ account. Again, those pleaded facts are to be taken as admitted, but I note that respective bank statements of both Ms Wirepa and Mr Hockings are in evidence. Those statements show that the funds were transferred from Ms Wirepa to Mr Hockings on 11 September 2024. Mr Hockings’ email also acknowledges that the funds were transferred to him. There is no doubt that the funds are “property” within the broad meaning in s 5 of the Act. According, by virtue of s 58(1), the funds vested in the trustee on 3 September 2024.

(3)    Pursuant to s 116(1)(a), “all property that belonged to, or was vested in, [Ms Wirepa] at the commencement of the bankruptcy … is property divisible amongst the creditors of the bankrupt”.

24    The trustee further pleads by way of relief that Mr Hockings “has no right or interest in the Funds” and, consequently, a declaration should be made “that the transfer of the Funds from [Ms Wirepa] to [Mr Hockings] is void”.

25    The way in which the relief is pleaded causes difficulty. While I am satisfied on the basis of the statement of claim that the funds:

(1)    vested in the trustee on 3 September 2024; and

(2)    are property divisible amongst the creditors;

and, consequently,

(3)    Ms Wirepa did not have the capacity to transfer the funds to Ms Hockings: see s 116(1)(b); and

(4)    Mr Hockings had no entitlement to retain the property;

it is unclear what is sought by a declaration that the transfer is void.

26    The Act identifies circumstances where a transaction is void as against the trustee. For example, ss 120(1) and 121(1) each provide that “[a] transfer of property by a person who later becomes a bankrupt (the transferor) to another person (the transferee) is void against the trustee …” in prescribed circumstances; see also ss 121A, 122, 128B and 128C. The remedies in relation to such void transactions are prescribed by the Act. For example, in relation to void transactions under s 128B or s 128C involving the receipt of money by a person, s 139ZQ provides for the giving of a written notice for the payment of the money to the trustee. Subsection 139ZQ(8) then provides that “[a]n amount payable by a person to the trustee under this section is recoverable by the trustee as a debt by action against the person in a court of competent jurisdiction” (emphasis added).

27    By contrast, the Act does not identify a payment by a bankrupt made after the appointment of a trustee as a void transaction. Accordingly, I am not satisfied that, on the face of the pleadings, the trustee is entitled to the declaratory relief that is claimed.

Relief directed to the recovery of the funds

28    It is evident from the pleadings set out above that the relief directed to the recovery of the funds relies on ss 129(4A) and 129(4B) of the Act. It is convenient again to set out paragraph [16] of the statement of claim:

16. In the premises of paragraphs 3 – 7 and 10 above, the Funds are recoverable by the Applicant as a debt by action against the Respondent.

Particulars

i. Section 129(4A) of the Act.

29    Paragraph [10] pleads that the trustee issued a formal notice of demand pursuant to ss 129(4) and 129(4B) of the Act.

30    Subsections 129(4), (4A) and (4B) provide:

(4) If a person has in his or her possession or power any moneys or security that he or she is not by law entitled to retain as against the bankrupt or the trustee, he or she shall pay or deliver the moneys or security to the trustee.

(4A) Where:

(a) moneys are payable to a person under a law of the Commonwealth or of a State or Territory;

(b) that person is a bankrupt or the moneys are payable to the person as the legal personal representative of a person who was at the time of his or her death a bankrupt; and

(c) the moneys constitute property divisible amongst the creditors of the bankrupt or the deceased bankrupt, as the case may be;

those moneys shall, upon demand by the trustee, be paid to the trustee notwithstanding any provision to the contrary in that law.

(4B) A demand under subsection (4A) shall be in accordance with the approved form.

31    During the hearing, the trustee accepted that s 129(4A), and s 129(4B) which depends on the operation of s 129(4A), were inapplicable to the present circumstances and that their inclusion in the statement of claim was in error. It was submitted that, nonetheless, the statement of claim could be read in a way that relied on s 129(4) alone.

32    There are difficulties in accepting that submission.

The pleading relies on s 129(4A)

33    First, the particular supporting the pleaded relief in paragraph [16] of the statement of claim is directed to s 129(4A). Further, the premise in paragraph [10] of the statement of claim relies upon the issuing of a notice of demand. That is consistent with the obligation that arises under s 129(4A) that the relevant money “shall, upon demand by the trustee, be paid to the trustee” (emphasis added). This is supported by the terms of the notice of demand which suggest that it was issued under “Bankruptcy Act 1966 Subsection 129(4B)”. While paragraph [10] of the statement of claim and the covering letter to the notice of demand also refer to the notice of demand being issued pursuant to s 129(4), the liability to pay the money under s 129(4) is not conditioned on the giving of a notice of demand. Accordingly, the pleading on its face is directed to an obligation arising under s 129(4A).

The statement of claim pleads a debt

34    Secondly, even assuming without deciding that the erroneous reliance on s 129(4A) can be overlooked, there is further difficulty with the relief pleaded that the funds are recoverable by the trustee “as a debt by action against” Mr Hockings, and the particularisation of that claim by reference to s 129(4A). Two important further questions arise. The first question is whether s 129(4) creates “a debt” that can be claimed by the trustee against Mr Hockings. If that is not the case, the second question is whether the facts pleaded might give rise to another cause of action for the recovery of the money. I will now address those questions in turn.

Does s 129(4) create a debt?

35    As to the first question, whether a statutory debt is created depends upon the statutory text and context: see the analysis in ACN 002 402 146 Pty Ltd (manager appointed) (in liq) (formerly known as Tome Bros Pty Ltd) v Ken Crossman & Co Pty Ltd [2023] FCAFC 35; 296 FCR 241 at [31]–[39] (Markovic, Anderson and McElwaine JJ).

36    One possible source of the obligation to pay the money as a debt to the trustee is s 129(4) of the Act, set out above at [30], which is referred to in the statement of claim (although not as the source of the statutory debt).

37    However, there are difficulties with identifying s 129(4) as creating a statutory debt owed to the trustee:

(1)    The statutory obligation to pay moneys under s 129(4) is not identified in the Act as creating a recoverable debt. This is in contrast to other provisions in the Act, including s 139ZQ(8) referred to earlier in these reasons, which identify an amount payable to a trustee as a debt recoverable by the trustee in a court of competent jurisdiction; see also ss 154(2) and 139ZL(10).

(2)    The provision applies not only to “moneys”, but also to “security”, and the obligation is identified in terms of “shall pay or deliver the moneys or security”. It is not immediately apparent that the “delivery” (assuming the provision is to be read distributively) of a “security” can be characterised as creating a debt.

(3)    Subsection 129(5) identifies a consequence of non-compliance with s 129(4). That subsection states:

A person who does not pay or deliver to the trustee any moneys or security that he or she is required by subsection (4) or (4A) so to pay or deliver is guilty of contempt of court.

A case in which contempt proceedings were brought by the Official Trustee in Bankruptcy, in his capacity as trustee of a bankrupt estate, under s 129(5) for the failure to comply with s 129(4) is Kerrison v Official Trustee in Bankruptcy (1990) 27 FCR 271. There is a real question as to whether s 129(5) exhausts the consequences of non-compliance with s 129(4). In other words, whether the only operation s 129(4) has is to create the enlivening condition for s 129(5). This difficulty is highlighted by the terms of the notice to Mr Hockings on 14 March 2025 and its accompanying covering letter. The consequence of non-compliance with the notice of demand was identified in the notice in the following terms:

Under subsection 129(5) of the Bankruptcy Act 1966, if you do not pay this amount to me, you will be guilty of contempt of court.

The covering letter further states:

Please note that, should you fail to respond, or fail to make payment by Friday, 3 April 2025; then, pursuant to Section 129(5) of the Act, a person who does not pay or deliver to the Trustee any property that he or she is required by Section (4) so to pay or deliver, is guilty of contempt of court.

There is no reference in either the notice of demand or the covering letter to there being an action for recovery as a debt.

38    Accordingly, even if s 129(4) of the Act were accepted as the basis for the claim for relief, it is not self-evident that the obligation to pay the money under that section creates a debt that is recoverable by the trustee.

Other characterisations of the obligation to pay the money

39    I was not directed to any authorities on the operation of s 129(4), and my own efforts only produced three cases of relevance: Kerrison (discussed above); Yeo (Trustee) in the matter of Taib (Bankrupt) v Melnik [2025] FedCFamC2G 1486; and Woods v Ulusoylu [2017] FCCA 935; 319 FLR 413. In Yeo, Judge Champion said that in circumstances where the provision is enlivened, the trustees in question “would have been entitled to an order under s. 129(4)” that the person in question “pay or deliver the moneys … to the trustee”. The obligation is not characterised as a debt; rather, as an obligation to comply with the statutory command enforceable by court order. In the alternative, his Honour explained that the trustees would be entitled to a declaration and an ancillary order for the payment of money to the trustees under s 30(1)(b) of the Act. That section provides:

(1) The Court:

(a) …; and

(b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.

40    The “complementary” connection between ss 30(1)(b) and 129(4) was also noted by Judge A Kelly in Woods at [235], where his Honour expressed the view that “[s] 30 can be seen as the jurisdictional foundation authorising the making of orders for payment” while s 129 provides the “source[] of liability to pay”. Again, there is no reference to the creation of a debt.

41    At the hearing, the trustee’s legal representative suggested that an alternative cause of action might be available to the trustee for money had and received. The elements of such a claim were discussed in Equuscorp Pty Ltd v Haxton [2012] HCA 7; 246 CLR 498 at [30] (French CJ, Crennan and Kiefel JJ); Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; 253 CLR 560 at [15]–[16] (French CJ); [65]–[67] (Hayne, Crennan, Kiefel, Bell and Keane JJ); [105]–[106] (Gageler J, as his Honour then was); and David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353 at 378–9 (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ).

42    If such an action is open to the trustee, that is not the relief that has been pleaded. While the trustee has pleaded facts that might give rise to such relief, that is not a matter that should be determined on a default judgment application where the elements of the action have not been identified or the subject of considered submissions.

Summary so far

43    The legal principles on default judgment direct attention to the pleadings which are to be treated as admitted. However, there are difficulties with the pleaded case. The pleaded relief relies on a provision that is accepted by the trustee to have no application to the circumstances and is pleaded as recovery of a debt. The trustee has not satisfied me that the relief pleaded is good in law. While the facts pleaded might (indeed, perhaps, may well) give rise to a basis for relief, that basis is not set out in the statement of claim. Mr Hockings is entitled to know the case put against him, and the difficulties with the pleadings should not be resolved on a default judgment application.

Other considerations going to discretion

44    Mr du Maurier’s affidavit in support of the default judgment application exhibits an email from Mr Hockings that was sent on 4 May 2026. It was sent from the email address to which the originating process was served in accordance with my substituted service orders. I draw an inference from the evidence that the email was prompted by receipt by Mr Hockings of the originating process.

45    The content of the email describes his relationship with Ms Wirepa and the circumstances surrounding the transfer of the funds to him. It is not necessary to outline the detail of the email. It suffices to say that Mr Hockings claims to have been a reluctant participant in the arrangement; that after the funds were transferred into his account, Ms Wirepa used the account for her own personal purposes; that she deposited certain amounts into that account from business activities; and that, from 3 April 2025 to 1 June 2025, he transferred the amount of $52,480 to Ms Wirepa’s account. There is also mention of the transfer of a further $5,000 to Ms Wirepa, and a further $10,000 being transferred into Ms Wirepa’s “property rates accounts”. However, the details of what is claimed in these later respects are unclear.

46    Mr du Maurier’s affidavit also exhibits bank statements forwarded by Mr Hockings. They record transfers to Ms Wirepa from 3 April 2025 to 1 June 2025 of four amounts totalling $52,480. There is no evidence before the Court in relation to the account into which that money was paid and, if the trustee has control of it, what steps have been taken by the trustee to recover the money.

47    From the bar table Mr du Maurier indicated that the trustee is in control of that account but that the money that was transferred to it had largely been dissipated by Ms Wirepa. It was explained that the trustee had requested Ms Wirepa’s banks to freeze her accounts above a particular threshold. It was explained that because of the thresholds set, the money was able to be dissipated by Ms Wirepa. However, none of this was in evidence.

48    An obvious difficulty arises from this evidence. If the money was paid into one of Ms Wirepa’s accounts, the money in that account is vested in the trustee. The payment by Mr Hockings was arguably a payment to the trustee for the purposes of s 129(4) of the Act. Mr du Maurier argued against that proposition on the basis that, although the trustee was in control of the account, Ms Wirepa had use of it within the threshold set by the trustee. It is not clear to me how that answers the question.

49    Three further points may be made. First, the fact that the trustee’s covering letter accompanying the notice of demand directed Mr Hockings to pay the funds to a particular account does not mean that payments to other accounts in the control of the trustee cannot be characterised as payments to the trustee. Secondly, the fact that the trustee has made practical judgements about the thresholds to be set for the freezing of bank accounts does not mean that undetected payments to those accounts cannot be characterised as payments to the trustee. Thirdly, in the absence of evidence of a forensic assessment of Mr Hockings bank statements, I cannot be satisfied that there are not further amounts that can be characterised as payments to the trustee.

50    Without knowing the circumstances surrounding the payments by Mr Hockings to Ms Wirepa, including the steps taken by the trustee in relation to the relevant account, it is impossible to determine with confidence what Mr Hockings’ liability to the trustee should be (assuming a legal claim could be made out).

Summary of other discretionary considerations

51    As mentioned earlier in these reasons, as a general proposition a default judgment application directs attention to the pleaded facts which are to be taken as admitted. However, further evidence can be considered in determining whether the claimed relief should be ordered at the default judgment stage. In addition to the difficulties with the pleaded relief and its basis, the additional difficulties identified in this section militate against the making of orders for default judgment.

Conclusion

52    For the foregoing reasons, I am not satisfied that default judgment should be ordered. The discretionary power to do so is to be exercised cautiously and I have identified difficulties with the claim going both to the pleadings themselves and discretionary considerations relevant to the grant of relief. Accordingly, the interlocutory application seeking default judgment is dismissed.

53    In light of the difficulties I have identified with the pleadings, the trustee might seek to amend those pleadings before proceeding further.

54    Mr Hockings should be served with a copy of my orders and reasons. Since he has responded to emails sent to his email account, that service is to be effected by email to the same address. There will be no order as to costs.

Associate:

Dated:    20 October 2026