CBFC Ltd v Charitopoulos - [2009] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CBFC LIMITED v CHARITOPOULOS & ORS
[2009] SASC 30
Judgment of The Honourable Justice White
18 February 2009
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - JUDGMENTS AND ORDERS
Application for default judgment under r 75.14 of the Supreme Court Rules 1987 - plaintiff claimed an entitlement to enforce guarantees provided by each defendant - matter was listed for trial on 4 February 2009 - all defendants aware of trial date - first and second defendant did not appear - third defendant appeared in order to make applications for a stay or an adjournment of the trial - third defendant left the Courtroom after the refusal of the stay and adjournment applications, but before the commencement of the trial - plaintiff applied for a default judgment under r 75.14.
Held: Plaintiff is entitled to judgment under r 75.14 of the Supreme Court Rules 1987 - default judgment entered against each defendant
South Australian Supreme Court Rules 1987 r 75.14; South Australian Supreme Court Rules 1987 r 23.01; Bankruptcy Act 1966 (Cth) Part X, referred to.
Reg v Gobert (1958) SR (NSW) 114, applied.
Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508; Banque Commerciale S.A., en Liquidation v Akhil Holdings Limited (1990) 169 CLR 279; Barker v Furlong [1891] 2 Ch 172, distinguished.
Crotty v Clarke (1896) 22 VLR 594, considered.

CBFC LIMITED v CHARITOPOULOS & ORS
[2009] SASC 30
Civil

WHITE J: The plaintiff (CBFC) sues to enforce a guarantee given to it by each of the defendants on 10 July 2000. The action came on for trial on 4 February 2009. On that day, acting under r 75.14 of the Supreme Court Rules 1987, I entered judgment for CBFC against each defendant in the sum of $5,334,679.08. I said that I would publish reasons later. These are those reasons.
Prior to 2006, a number of companies associated with Golden Chef Australia Pty Ltd (GCA) were involved in the supply and delivery of lunches and snacks to factories, offices and building sites in both Adelaide and Melbourne. The business of the group was conducted using a fleet of vans.
Each of the defendants was a principal of some of the companies involved in the business. The first and second defendants are husband and wife and the third defendant their son. It is convenient to refer to them in these reasons by their first names of George, Rosa and Pantelis.
At relevant times, George and Rosa were directors of GCA. Pantelis was the director and sole shareholder of Asset Management Solutions Pty Ltd (AMS). Much of the plant and equipment, including the vans, used in the business was owned by AMS.
In August 2001 CBFC advanced to AMS, by way of a chattel mortgage, finance amounting to $6.6 million. AMS used the money to consolidate existing debts, and to acquire vehicles and catering and computer equipment. The term of the loan was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CBFC Ltd v Charitopoulos

Details

AGLC: CBFC Ltd v Charitopoulos [2009] SASC 30
Case: [2009] SASC 30
Decision Date: 18 February 2009

CaseChat Overview and Summary

In the case of CBFC Ltd v Charitopoulos, the plaintiff sought to enforce guarantees provided by the defendants. The matter was set for trial before the Supreme Court of South Australia. The plaintiff claimed that the guarantees were enforceable, and the defendants had failed to appear or make any defense. The first and second defendants did not attend the trial, while the third defendant appeared briefly to make applications for a stay or an adjournment, which were subsequently refused. The third defendant then left the courtroom before the trial commenced. In response, the plaintiff applied for a default judgment under rule 75.14 of the Supreme Court Rules 1987.

The primary legal issue before the court was whether the plaintiff was entitled to a default judgment. The court had to consider whether the conditions under rule 75.14 of the Supreme Court Rules 1987 were satisfied, specifically whether the defendants had failed to appear or make any defense, and whether the plaintiff had complied with all necessary procedural requirements. The court also needed to determine if there were any grounds on which the third defendant could argue against the entry of a default judgment, particularly given his brief appearance and subsequent departure before the trial began.

The court examined the facts and found that the first and second defendants had not appeared or made any defense, meeting one of the criteria for a default judgment. The third defendant had also failed to appear for the trial after the refusal of his applications for a stay or adjournment. The court concluded that the plaintiff had fulfilled all procedural requirements and that there were no valid grounds to prevent the entry of a default judgment. The court determined that the plaintiff was entitled to enforce the guarantees as claimed, and it granted the application for a default judgment in favour of the plaintiff.

Orders