Commonwealth Bank of Australia v Finance and Mortgage Services (Aust) Pty Ltd

[2012] VCC 1340

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST
BANKING & FINANCE DIVISION

Case No. CI-11-03141

COMMONWEALTH BANK OF AUSTRALIA	Plaintiff
v.
FINANCE & MORTGAGE SERVICES (AUST) PTY LTD and JAMES GANNERO PERRI	Defendants

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2012
DATE OF JUDGMENT:	20 September 2012 (revised 20 September 2012)
CASE MAY BE CITED AS:	Commonwealth Bank of Australia v. Finance & Mortgage Services (Aust) Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2012] VCC 1340

REASONS FOR JUDGMENT

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Catchwords:            Practice and procedure – Summons by defendants to set aside default judgment – Second summons issued after first dismissed – Application by plaintiff to bring forward the hearing date of the second summons – No appearance by or on behalf of defendants – Inadequate explanation – Second summons dismissed.    

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C. Louka	Gadens Lawyers
For the Defendants	No appearance

HIS HONOUR:

1The defendants have issued a summons dated 14 August 2012, effectively seeking to have reheard an earlier summons issued by the defendants on 29 May 2012 to have a default judgment, entered in default of defence on 1 September 2011, set aside. The earlier summons, although filed on 29 May 2012, was given a return date of 31 August 2012, and was not supported by affidavit material. At the request of the plaintiff, the matter was brought on for hearing at an earlier date. The defendant did not appear on the hearing date of 10 August 2012 and the summons was dismissed with costs.

2The defendants issued a further summons on 14 August 2012, returnable on 12 October 2012. The further summons was not supported by affidavit material. The plaintiff applied to the Directions Group to have the summons brought forward and heard on an earlier date. Judge Lacava, on 17 September 2012, directed that a directions hearing be listed for today. That was done and notice that the matter had been listed today was given to the defendants by letter from the plaintiff’s solicitors, dated 18 September 2012, sent by email addressed to the second defendant.

3The defendants have not appeared today. The first defendant sent an email to the Court at 4.54pm on 19 September 2012, seeking to maintain the hearing date in the summons of 12 October 2012. The email makes assertions about the plaintiff’s solicitors, referring to the plaintiff’s solicitors’ request to list the second summons earlier as a “false misleading application for a quick hearing”. The email also asserts that the plaintiff’s solicitors “have been forwarding [their] emails to a third party for which the company was not notified”.

4The notice of appearance in this matter is dated 12 July 2011 and purports to be on behalf of both defendants although the first defendant is a corporation. The document states that it was prepared by James Gannaro Perri, the second defendant, and gives the address for service of the “defendant” as Level 1, Suite 11, 10-14 Belair Ave, Glenroy, Victoria, 3046.

5The order I made on 10 August 2012 dismissing the defendants’ summons, dated 29 May 2012, was directed to be sent by prepaid mail to the defendants at the address for service set out in the notice of appearance at Glenroy and by email to [email protected], which was the address at which the plaintiff’s solicitors had been communicating with the second defendant. I am satisfied that copies of the order were served on the defendants, as directed, on 13 August 2012, both by prepaid mail sent to the Glenroy address and by email sent to the hotmail address.

6The second summons, filed 14 August 2012, stated on its face that it had been filed on behalf of both defendants and was prepared by “Mr James Perri, mailing address 45 Central Ave, Blairgowrie, Vic, 3942”. The summons was not supported by any affidavit material. A copy of the summons was served on the plaintiff by email addressed to Ms Louka, a solicitor at Gadens Lawyers at her email address “[email protected]”.

7On 18 September 2012, a letter was sent to Mr Perri, at the address, 45 Central Ave, Blairgowrie, Vic, 3924 and was also sent by email to [email protected] (the hotmail address from which the summons, dated 14 August 2012, had been sent to the plaintiff’s solicitors). The letter from the plaintiff’s solicitors attached a “copy of filing report obtained from the Court’s website via Court Connect”, which confirmed that the “Directions hearing listed is scheduled for 20-SEP-12”. The email dated 19 September 2012, sent at 4.54pm, apparently by the first defendant, as it purports to be “from Finance & Mortgages Services Australia Pty Ltd”. It is addressed to the Directions Group, but copied to [email protected]. Not surprisingly, the email was not received by Ms Louka of the plaintiff’s solicitors, being addressed to “gardens” not “gadens”.

8The defendants have not appeared today and have offered no reason why no appearance has been made or why no appearance was made when the earlier summons issued by the defendants was dealt with on 10 August 2012. I am satisfied that at all stages the plaintiff’s solicitors have attempted to keep the defendants informed of the steps being taken by them, including more recently, the application to the Directions Group on 13 September 2012 to have the summons issued 14 August 2012 brought on for hearing at a date earlier than 12 October 2012 (that email was copied to [email protected]), and the giving of notice of the listing of the directions hearing today, sent to [email protected] (being the address from which the defendants’ summons, dated 14 August 2012, was served upon the plaintiff).  

9In the circumstances, I am not satisfied that the plaintiff’s solicitors have been “forwarding your emails to a third party for which the company was not notified”. I am satisfied that notice of the application today was properly served on the defendants and that the email from the plaintiff’s solicitors, dated 13 September 2012, made it clear that the plaintiff was seeking to have the defendants’ second summons, seeking to set aside judgment, heard earlier than 12 October 2012. I am also satisfied that, in the circumstances of this case, where judgment was entered in default of defence on 1 September 2011 and no affidavit has been filed in support of either the first summons, filed by the defendants on 29 May 2012, or the second summons filed by the defendants on 14 August 2012, that there is nothing but bare assertions as to why judgment was allowed to be entered, the delay which has occurred since that time and any basis upon which the defendants might have to defend the proceeding.

10Accordingly, I propose to make the following orders:

a.The defendants’ summons, filed 14 August 2012, is dismissed.

b.The defendants must pay the plaintiff’s costs of the summons to be taxed in default of agreement.

c.A copy of this order must be sent by the plaintiff to the defendants by prepaid mail addressed to Mr James Perri, 45 Central Ave, Blairgowrie, Vic, 3942, and by email addressed to [email protected], [email protected] and [email protected], together with the reasons for decision given by His Honour Judge Anderson on 20 September 2012, as soon as the reasons are made available by the Judge’s Associate.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 20 September 2012.

Dated: 20 September 2012

Caroline Dawes

Associate to His Honour Judge Anderson