Alliance Motor Auctions Pty Ltd trading as Alliance Motor Auctions v Best Buy Auto Group Pty Ltd trading as Best Buy Auto
[2023] NSWSC 635
•09 June 2023
Supreme Court
New South Wales
Medium Neutral Citation: Alliance Motor Auctions Pty Ltd trading as Alliance Motor Auctions v Best Buy Auto Group Pty Ltd trading as Best Buy Auto [2023] NSWSC 635 Hearing dates: 9 June 2023 Date of orders: 9 June 2023 Decision date: 09 June 2023 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Leave granted to plaintiff under s 471B Corporations Act 2001 (Cth); plaintiff entitled to default judgment
Catchwords: CORPORATIONS – application for leave to proceed against companies in liquidation – s 471B Corporations Act 2001 (Cth)
Legislation Cited: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Category: Procedural rulings Parties: Alliance Motor Auctions Pty Ltd trading as Alliance Motor Auctions ACN 091 295 322 (Plaintiff)
Best Buy Auto Group Pty Ltd (in liquidation) trading as Best Buy Auto ACN 134 795 412 (First Defendant)
Mezin Hadad (Second Defendant)Representation: Counsel:
Solicitors:
B Smith (Plaintiff)
No Appearance (Defendants)
David Hand Solicitor (Plaintiff)
File Number(s): 2022/268047
EX TEMPORE JUDGMENT (REVISED)
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The plaintiff brings these proceedings against the first defendant in debt and the second defendant as guarantor of that debt. The debt is said to arise from a Dealer Registration Agreement made between the plaintiff and the first defendant on 15 July 2014.
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The first defendant has appeared and participated to some extent in these proceedings. It was, however, wound up in insolvency on the application of the Deputy Commissioner of Taxation on 14 April 2023.
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The plaintiff thus requires leave to proceed against the first defendant under s 471B of the Corporations Act 2001 (Cth). The liquidator of the first defendant has indicated to the plaintiff's solicitors that he or she neither consents nor opposes the grant of such leave. Mr Smith, who appears for the plaintiff, offers the usual undertaking by the plaintiff to not seek to enforce any judgment obtained against the first defendant otherwise than by proof in the winding-up. I am satisfied I should grant leave under s 471B.
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The second defendant has appeared by solicitor on a number of occasions. He and the first defendant filed a notice removing that solicitor on 1 December 2022.
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The second defendant had earlier filed a motion seeking preliminary discovery against various non-parties. That application was dismissed with costs by Ball J on 10 March 2023.
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On that occasion his Honour also ordered that both defendants serve any Commercial List response by 24 March 2023. That has not happened.
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At around that time the second defendant made a number of communications by email to Ball J's chambers, making a number of unsubstantiated assertions about the second defendant's health.
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On 16 May 2023, the plaintiff filed a Notice of Motion seeking default judgment or, alternatively, summary judgment against both defendants.
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On 17 May 2023, the plaintiff sent the Notice of Motion and supporting evidence to the second defendant at the email address that the second defendant had used to communicate with Ball J's chambers, being theemail address [email protected]. A very short time later, an email was sent to the plaintiff's solicitor signed "Friend of maz", stating:
“To whom it may concern:
Mezin Hadad is unable to mount a defence in the proceedings: 2022/268047 Alliance Motor Auctions Pty Ltd v Best Buy Auto Group at this time. He is currently under medical supervision of Dr Lachlan Thompson MD BSc in an ongoing program.
Mezin’s private and sensitive medical information (emails) were sent as evidence he was unable to defend himself.
Legal Capacity: Mezin Hadad remains unrepresented and in care until further notice.
Service: Mezin Hadad will not accept service of documents in person, electronically, at court or servers [sic] office until further notice.
Orders: Mezin Hadad will not participate in any legal proceedings until further notice.
Regards,
Friend of Maz.”
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On 25 May 2023, the plaintiff's solicitor received a further email from the "carsalwayswanted" email address, stating:
“HI MY BROTHER IS VERY SICK AND FIGHTING FOR LIFE I CAN SEND YOU HOSPITAL PAPERWORK AND HAS MASSIVE MENTAL PROBLEMS”
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The matter was listed before Ball J for directions on 19 May 2023. On that occasion his Honour adjourned the matter to today "in the expectation that an application for substituted service will be made".
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On 6 June 2023, the plaintiff's solicitor sent to the "carsalwayswanted" email address a copy of an Amended Notice of Motion which, in conformity with Ball J's requirement, seeks, in addition to the relief sought originally, an order under Uniform Civil Procedure Rules 2005 (NSW) r 10.14(3) that the motion be taken to have been served on the second defendant by the email communications in May to which I have referred.
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The plaintiff's solicitors received in response to that 6 June 2023 email a reply email from the "carsalwayswanted" email address in exactly the same terms as the email to which I have referred at [9] above.
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The plaintiff's claims against the first defendant is a straightforward case of debt arising from the Dealer Registration Agreement. The evidence before me enables me to be comfortably satisfied that the plaintiff has established that case. Similarly, the case against the second defendant is straightforward, and I am satisfied based on the evidence before me that the plaintiff has established that case.
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In any event, as Mr Smith who appears for the plaintiff before me has submitted, the plaintiff's alternative case is for default judgment and I am satisfied that the circumstances have been established that entitle the plaintiff to such judgment.
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In those circumstances, I make the orders in the document called "Short minutes of order" which I have initialled and dated. I direct that by 5pm today the plaintiff notify the liquidator and the first defendant (at the "carsalwayswanted" email address) of the making of these orders. I also direct that the plaintiff send to the liquidator and to the first defendant (again at that address) of these reasons for judgment once they are to hand.
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I direct that the plaintiff's Amended Notice of Motion otherwise be stood over for directions until 18 August 2023. I note that all that remains in the proceedings is the relief sought by the plaintiff in paragraph 5 of the Amended Notice of Motion and that between now and 18 August 2023 the plaintiff will consider whether it proposes to press for that relief.
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Decision last updated: 13 June 2023
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