CTRC Pty Ltd v Yao

Case •

[2025] VSC 345

•

13 June 2025 Ex tempore; revised 18 June 2025

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL LIST – CONNOCK J

S ECI 2024 03094

CTRC PTY LTD (ACN 603 555 228) Plaintiff
v 
JIA JIA YAO Defendant

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JUDGE:

Connock J

WHERE HELD:

Melbourne

DATE OF HEARING:

13 June 2025

DATE OF REASONS:

13 June 2025 Ex tempore; revised 18 June 2025

DATE OF DEFAULT JUDGMENT:

18 June 2025

CASE MAY BE CITED AS:

CTRC Pty Ltd v Yao

MEDIUM NEUTRAL CITATION:

[2025] VSC 345

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PRACTICE AND PROCEDURE — Application pursuant to r 2.07(1) of the Supreme Court (Miscellaneous Civil Proceeding) Rules 2018 (Vic) ch II — Leave pursuant to r 2.07(1) of the Supreme Court (Miscellaneous Civil Proceeding) Rules 2018 (Vic) ch II to seek to enter judgment in default of appearance refused — Application for leave to proceed against a defendant served out of Australia pursuant to r 7.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Leave to proceed against a defendant served out of Australia granted — Operation of r 21.03(1.2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Judgment in default of appearance not permitted to be entered in respect of a debt claim in a currency other than Australian dollars — Application for judgment in default of appearance for a debt in foreign currency — Application for judgment in default of appearance pursuant to r 21.04 of the Supreme Court (General Civil Procedure) Rules2015 (Vic) — Principles applicable to applications under r 21.04 of the Supreme Court (General Civil Procedure) Rules2015 (Vic) — Principles applicable to application for leave pursuant to r 7.07 of the Supreme Court (General Civil Procedure) Rules2015 (Vic).

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APPEARANCES:

 Counsel Solicitors
For the Plaintiff J Pytel, solicitor McDonald, Slater & Lay
For the Defendant No appearance

HIS HONOUR:

Introduction and summary

  1. By writ and statement of claim filed 19 June 2024, the plaintiff made a debt claim against the defendant in respect of two loans, each of SGD1,000,000, plus interest, (Debt Claim) alleged to have been advanced pursuant to two separate written loan agreements between the plaintiff and the defendant (Loan Agreements).

  1. Substituted service orders were made by Gitsham JR on 20 September 2024 (Service Orders) in respect of service on the defendant in Singapore of the writ and statement of claim and other documents referred to in paragraph 1(a) of the Service Orders (Service Documents). Service was said to have been carried out in accordance with the Service Orders by 10 January 2025 and it was said that the defendant had failed to file an appearance within the relevant 42-day period or at all. The plaintiff’s solicitor sought to enter default judgment against the defendant through the registry in respect of the Debt Claim pursuant to r 21.03(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules).

  1. The registry drew the plaintiff’s solicitor’s attention to the requirements of r 2.07(1) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) (Chapter II Rules), which requires leave to be first obtained in order to seek to enter judgment in default of appearance through the registry where the proceeding is managed by a Commercial List Judge, as is the case here. Attention was also drawn to r 7.07(1) of the Rules, which, in addition, prevents a party proceeding against a defendant without leave of the Court where the defendant is served out of Australia and does not file an appearance, as is also the case here.

  1. At the hearing on 13 June 2025, the plaintiff made an oral application pursuant to r 2.07(1) of the Chapter II Rules for leave to seek to enter judgment in default of appearance through the registry under r 21.03(1)(a) of the Rules in respect of the Debt Claim. Upon the refusal of that application, the plaintiff made an alternative application for leave to proceed against the defendant as a person served outside of Australia pursuant to r 7.07(1) of the Rules, and an application for judgment in default of appearance against the defendant pursuant to r 21.04(1) of the Rules in respect of the Debt Claim.

  1. For the reasons that follow:

1) the plaintiff’s application pursuant to r 2.07(1) of the Chapter II Rules for leave to seek to enter through the registry judgment in default of appearance in respect of the Debt Claim under r 21.03(1)(a) of the Rules was refused;

2) the plaintiff was granted leave pursuant to r 7.07(1) of the Rules to proceed against the defendant as a person served outside of Australia by making an application under r 21.04(1) of the Rules for judgment in default of appearance in respect of the Debt Claim; and

3) pursuant to r 21.04(1) of the Rules, judgment in default of appearance should be given against the defendant in favour of the plaintiff in respect of the Debt Claim (including interest), and in respect of the applicable prescribed costs.

Affidavits and other material

  1. The plaintiff relied upon an affidavit of its solicitor, Jeremy Pytel, sworn 11 June 2025, two affidavits of service of Tan Yun Hao Alson sworn 3 January 2025 and 26 May 2025 (Service Affidavits), an outline of submissions filed 12 June 2025, and a draft default judgment. The written submissions were supplemented by oral submissions made by the plaintiff’s solicitor at the hearing, and prior to delivering my rulings ex tempore, I had read, heard, and considered all of the material and the written and oral submissions.

Relevant rules for judgment in default of appearance[1]

[1]And putting to one side for the moment r 7.07 of the Rules, which is discussed further below.

  1. Judgment in default of appearance or pleading is addressed in ord 21 of the Rules. Relevantly, rr 21.01–21.04 and r 21.07, read (in part) as follows:

21.01   Default of appearance

(1)This Rule applies only to a proceeding commenced by writ.

(2)Where a defendant does not file an appearance within the time limited, the plaintiff may enter or apply for judgment against that defendant in accordance with this Order unless Rule 2.07(1) of Chapter II applies.

Note

Rule 2.07(1) of Chapter II provides that, in a Commercial List that is managed by a Commercial List Judge, an order of a Commercial List Judge is required before judgment in default of appearance can be entered.

(3)Judgment shall not be entered or given for the plaintiff unless there is filed—

(a)a notice to the Prothonotary requesting the Prothonotary to search for an appearance by the defendant;

(b)an affidavit proving service of the writ on the defendant; and

(c)where the plaintiff applies for judgment in accordance with Rule 21.04 and the indorsement of claim on the writ does not constitute a statement of claim in accordance with Rule 5.04, a statement of claim.

…

21.03   Judgment for recovery of debt, damages or property

(1)Where a claim is made for the recovery of a debt, damages or any property, whether or not another claim is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with Rule 21.01 or Rule 21.02, the plaintiff may—

(a)for the recovery of a debt, enter final judgment against that defendant for an amount not exceeding the amount claimed in the writ or, if the plaintiff has served a statement of claim, the amount claimed in the statement of claim, together with interest from the commencement of the proceeding to the date of the judgment—

(i)on any debt which carries interest, at the rate it carries;

(ii)on any other debt, at the rates payable on judgment debts during that time;

…

(1.2)Paragraph (1) does not apply to a claim for the recovery of a debt or damages in a currency not Australian dollars, and if the plaintiff is entitled to judgment on the claim against any defendant in accordance with Rule 21.01 or Rule 21.02, the Court may give judgment for the plaintiff under Rule 21.04 as if the claim were a claim to which that Rule applies.

(2)Upon entering judgment under paragraph (1), the plaintiff may also enter judgment for costs.

…

21.04   Judgment other than for recovery of debt, damages or property

(1)Where a claim is made other than for the recovery of a debt, damages or any property, whether or not a claim for such recovery is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with Rule 21.01 or 21.02, the Court may give judgment for the plaintiff upon the statement of claim.

(2)An application for judgment under paragraph (1) may be made without notice to the defendant.

…

21.07   Setting aside judgment

The Court may set aside or vary any judgment entered or given in accordance with this Order.

  1. Rule 2.07(1) of the Chapter II Rules provides that ‘Judgment in default of appearance or pleading shall not be entered[2] in a proceeding in a Commercial List that is managed by a Commercial List Judge unless a Commercial List Judge so orders’.

Plaintiff’s application under r 2.07(1) of the Chapter II Rules for leave to seek to enter judgment under r 21.03(1)(a) of the Rules

[2]My emphasis.

  1. I addressed the operation of r 2.07(1) of the Chapter II Rules in Victorian WorkCover Authority v White[3] and Xie v Zhang[4] and it is convenient and efficient to largely repeat aspects of what I said in those cases.

    [3][2021] VSC 458.

    [4][2025] VSC 263.

  1. Ordinarily the administrative step of seeking to enter judgment in default of appearance is taken by the plaintiff through the Prothonotary in accordance with ord 21 of the Rules without first making an application to the Court for leave to take that step. However, this proceeding is managed by a Commercial List Judge, so r 2.07(1) of the Chapter II Rules of the Supreme Court is engaged.[5] When the rule was introduced, the requirement was essentially based upon case management, cost, and efficiency considerations, including preventing what is colloquially known as ‘snapping on’ judgment in default. However, the requirement does not otherwise alter the essentially administrative process for entering judgment where leave is granted to seek to pursue that course, and neither does it change the character of the act of the Prothonotary in entering judgment in default of appearance.

    [5]Paragraph 16.5 of Commercial Court Practice Note SC CC 1 previously reinforced the position by providing that judgment may not be entered administratively in a proceeding within a Commercial List unless the List Judge gives leave to do so, although this additional note does not appear in the revised version of the Practice Note issued on 26 February 2024.

  1. It follows that, where, as here, the proceeding is managed by a Commercial List Judge, before the plaintiff can seek to enter judgment in default of appearance pursuant to rr 21.01 and 21.03(1) of the Rules, it is necessary for the plaintiff to obtain an order from the Court granting leave to the plaintiff to seek to take that step, which is what the plaintiff sought in this application.

  1. If leave under r 2.07(1) of the Chapter II Rules was granted to the plaintiff, it would then have been open to the plaintiff to seek to utilise the relevant procedures under rr 21.01 and 21.03(1) of the Rules to seek to enter judgment in default of appearance through the registry in the usual way — subject, of course, to the registry being satisfied that the necessary requirements had been met and that it was otherwise appropriate to enter default judgment in the terms sought.

  1. However, and putting to one side for the moment the additional requirement in r 7.07(1) of the Rules, in the circumstances of this case it is in my view clear that the Court should refuse to grant leave to the plaintiff under r 2.07(1) of the Chapter II Rules to seek to enter judgment in default of appearance in respect of the Debt Claim. This is because the grant of such leave would be futile. By reason of the operation of r 21.03(1.2) of the Rules, r 21.03(1) does not apply to a claim for the recovery of a debt in a currency that is not Australian dollars.

  1. In this case the Debt Claim seeks to recover a debt in Singapore dollars, as is evident from the writ and statement of claim. Consequently, if leave was granted pursuant to r 2.07(1) of the Chapter II Rules, and the plaintiff took steps to seek to enter judgment in default of appearance pursuant to r 21.03(1)(a) of the Rules through the registry, the Prothonotary would be compelled to refuse to enter such a default judgment by reason of the terms and operation of the exclusion in r 21.03(1.2) of the Rules.

  1. It follows that the plaintiff’s application for leave pursuant to r 2.07(1) of the Chapter II Rules for leave to seek to enter judgment in default of appearance through the registry in respect of the Debt Claim under r 21.03(1)(a) of the Rules must be refused.

  1. Returning to r 7.07(1) of the Rules, I add that r 7.07(1) presents as an additional hurdle, which also operates to prevent the plaintiff from seeking to enter judgment in default of appearance in the ordinary way. This is further considered below.

Plaintiff’s application for leave to proceed against the defendant under r 7.07(1) of the Rules

  1. As is apparent from the terms of r 21.03(1.2) of the Rules, although judgment in default of appearance under r 21.03(1) cannot be entered in respect of a debt in a currency that is not Australian dollars, r 21.03(1.2) provides a mechanism for enabling a plaintiff to ‘apply’ to the Court for (as opposed to ‘enter’) judgment in default of appearance in respect of such a debt, pursuant to r 21.04(1) of the Rules.

  1. However, because of the terms and operation of r 7.07(1) of the Rules, where the defendant is served out of Australia and does not file an appearance, the application under r 21.04(1) (through the gateway provided for by r 21.03(1.2)) cannot be made unless leave is first granted to the plaintiff to proceed against the defendant pursuant to r 7.07(1) of the Rules. Consequently, it was necessary to consider and address the plaintiff’s application under r 7.07(1) of the Rules prior to determining its application for judgment in default of appearance under r 21.04(1) of the Rules.

  1. Service out of Australia is addressed in ord 7 of the Rules, and r 7.02 of the Rules addresses the circumstances in which an originating process may be served out of Australia without leave. Relevantly, r 7.02(b) provides as follows:

7.02   When allowed without leave

An originating process may be served out of Australia without leave in the following cases—

…

(b)when the claim is for the enforcement, rescission, dissolution, annulment, cancellation, rectification, interpretation or other treatment of, or for damages or other relief in respect of a breach of, a contract which—

(i)was made or entered into in Australia; or

(ii)was made by or through an agent trading or residing within Australia; or

(iii)was to be wholly or in part performed in Australia; or

(iv)was by its terms or by implication to be governed by Australian law or to be enforceable or cognizable in an Australian court;

…

  1. Rule 7.07(1) of the Rules prohibits a person proceeding against a person served out of Australia who has not filed an appearance except by leave of the Court. That rule is in the following terms:

7.07   Leave to proceed where no appearance by person

(1)If an originating process is served on a person out of Australia and the person does not file an appearance, the party serving the document may not proceed against the person served except by leave of the Court.

(2)An application for leave under paragraph (1) may be made without serving notice of the application on the person served with the originating process.

  1. Rule 6.17 of the Rules addresses affidavits of service, and r 6.17(3) provides that an affidavit of service of originating process shall exhibit a copy of the sealed originating process.

  1. Upon giving my ruling that the plaintiff’s application for leave pursuant to r 2.07(1) of the Chapter II Rules should be refused, I stood the matter down to enable the plaintiff to consider and confirm whether it proposed to pursue its alternative application pursuant to r 7.07(1) of the Rules for leave to proceed against the defendant, by way of an application under r 21.04(1) for judgment in default of appearance. In so doing, I was cognisant of, and taking into account, the Court’s obligations under the Civil Procedure Act 2010 (Vic) (CP Act), noting also that r 7.07(2) of the Rules provides that an application for leave under r 7.07(1) may be made without notice, and that r 21.04(2) provides similarly in respect of an application for judgment in default under r 21.04 of the Rules.

  1. When the Court resumed, the plaintiff’s solicitor informed the Court that the plaintiff was making and pursuing these applications at the hearing, and was doing so relying upon the material it had already filed.[6]

    [6]See generally ord 46 headed ‘Applications’. Under r 46.02(2) an application on notice to any person is made by summons unless the Court otherwise orders, and under r 46.02(3) an application not by summons is made when it comes on for hearing.

  1. As a preliminary matter in this context I noted that r 2.07(1) of the Chapter II Rules does not apply to applications to the Court for default judgment made under r 21.04(1) of the Rules. As is apparent from the express terms of r 2.07(1) of the Chapter II Rules, that rule is only engaged where a party is seeking to ‘enter’ a judgment in default of appearance. Self-evidently, ‘applying’ to the Court for a judgment pursuant to r 21.04 of the Rules is a different process to seeking to have judgment in default of appearance ‘entered’ through the registry. This distinction between seeking to have default judgment ‘entered’ through the registry, and ‘applying’ to the Court for default judgment, is also evident from various other aspects of ord 21, including, for example, the use of the expression ‘enter or apply for judgment’ in r 21.01(2), and the reference to judgment ‘not [being] entered or given’ in r 21.01(3).

  1. The principles to be applied when considering an application under r 7.07(1) of the Rules were addressed by Riordan J in King v Linkage Access Ltd:[7]

    [7][2022] VSC 158, [19]–[26].

[19]     Rule 7.07 provides:

Leave to proceed where no appearance by person

(1)If an originating process is served on a person out of Australia and the person does not file an appearance, the party serving the document may not proceed against the person served except by leave of the Court.

(2)An application for leave under paragraph (1) may be made without serving notice of the application on the person served with the originating process.

[20]In determining whether leave should be granted under rule 7.07, the Court will have regard to whether:

(a)the defendant has been properly served; and

(b)the originating process makes claims of a kind which fall within one of the subparagraphs to rule 7.02.[8]

[8]Agar v Hyde (2000) 201 CLR 552, 574-5 [53]-[54] (Gaudron, McHugh, Gummow and Hayne JJ) (‘Agar’); Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320, [107(6)] (Elliott J); Rio Tinto Shared Services Pty Ltd v English Datasystems LLC [2021] VSC 660, [1] (Lyons J).

[21]If these criteria are satisfied, in the absence of some countervailing consideration, leave to proceed should then be given.[9]

[9]Agar (2000) 201 CLR 552, 575 [54].

[22]Counsel for the plaintiffs brought the attention of the Court to case law in New South Wales, in relation to the equivalent rule to rule 7.07,[10] which referred to additional factors to be considered in the grant of leave to proceed.

[10]Uniform Civil Procedure Rules 2005 (NSW) r 11.8AA.

[23]In Rossiter v Core Mining Ltd, Adamson J identified two additional considerations relevant to an application for leave to proceed and stated:

If originating process is served on a defendant outside Australia and the defendant does not enter an appearance, the plaintiff needs leave to proceed against that defendant: UCPR, r 11.4(1).

In [Agar] at [50]-[61] the High Court addressed the matters to be considered in deciding whether leave under UCPR r 11.4(1) ought be granted are whether:

(a)the defendant has been properly served;

(b)the claims in the originating process fall within UCPR, Sch 6;

(c)the plaintiff has an arguable case in the sense that it would be sufficient to survive an application for summary judgment; and

(d)the local forum is clearly inappropriate and there is another more appropriate forum.[11]

[11][2015] NSWSC 360, [10]-[11], quoted with approval in Western Sydney Local Health District v Jaca [2017] NSWSC 1626, {5} (Schmidt J); and Yoon v Lee [2017] NSWSC 1338, [6] (Darke J). See also Hutchinson v AD Securities America LLC [2021] NSWSC 1573, [4] (Ward CJ in Eq); Bingley-Pullen v Montgomery [2018] NSWSC 1308, [5] (Campbell J).

[24]In my opinion, if Adamson J was intending to set out the considerations for a grant of leave on an application made without notice to a defendant, the inclusion of the considerations referred to in sub-paragraphs (c) and (d) appear to be inconsistent with the decision of the plurality in Agar.  In particular, consideration of whether the plaintiff has an arguable case is contrary to the statement by the plurality that:

Where the application is made without notice to a defendant, there will be no occasion to consider any question about the strength of the plaintiff’s claim.[12]

[12]Agar 201 (2000) 201 CLR 552, 574 [53] (Gaudron, McHugh, Gummow and Hayne JJ).

[25]However, the plurality in Agar said that, on an application to set aside service or to have the Court decline to exercise jurisdiction, the Court may be expected to have regard to the considerations (b), (c) and (d) in the quoted passage of Adamson J.[13]  Of course, as such an application would be made by a defendant, consideration (a) would not be relevant.

[13]Ibid 575 [55].

[26]Her Honour’s comments were presumably intended to refer to the considerations that arise if:

(a)the defendant is given notice; or

(b)on an application to:

(i)        set aside; or

(ii)       decline to exercise jurisdiction,

where different issues arise to those applicable on an ex parte application for leave to proceed.  This is consistent with the following observation of Austin J in Bulldogs Rugby League Club Ltd v Williams, with respect to the statement of the plurality in paragraph 53 of Agar:

It is worth noting that subr 11.4 (2) allows the application for leave to proceed without serving that application on a defendant. The significance of this is explained by the judgment of Gaudron J, McHugh J, Gummow J and Hayne J in [Agar v Hyde] at [53]. Their Honours said that in circumstances where the application is made without notice to a defendant, there will be no occasion to consider any question about the strength of the plaintiff’s claim. Other cases – and Agar v Hyde itself [where the defendant had been served] - indicate that there are essentially four matters to consider in an application for leave under rule 11.4.[14]

[14][2008] NSWSC 822, [29]. See also Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320, [107(5)] (Elliott J).

  1. With respect, I share the view of Riordan J regarding the observations of Adamson J in Rossiter v Core Mining Ltd.[15] I refer also to the observations to similar effect of Button J in Kahn v Google LLC.[16]

    [15][2015] NSWSC 360, [10]–[11].

    [16][2023] FCA 785, [11]–[19] and the cases there cited.

  1. In my view it is appropriate in the present circumstances to grant leave to the plaintiff under r 7.07(1) to proceed against the defendant by way of an application for judgment in default of appearance pursuant to r 21.04(1) of the Rules in respect of the Debt Claim. My reasons can be briefly stated.

  1. On the material before me I am satisfied that the Debt Claim falls within (at least) r 7.02(b)(iv) of the Rules (as set out earlier). This is because the claim is seeking to enforce the Loan Agreements, or claim other relief in respect of a breach of the Loan Agreements, which by their terms are to be governed by Australian law and be enforceable or cognizable in an Australian court. I note in this regard that cl 7 of each of the Loan Agreements is in the following terms:

7.        GOVERNING LAW

This Agreement shall be construed in accordance with and shall be governed by the laws for the time being in force in the State of Victoria, Australia and each of the parties irrevocably submits to and accepts the exclusive jurisdiction of any of the courts of the State of Victoria, Australia and any courts that appeal from any such courts.

  1. Next, and as is discussed further below when addressing the plaintiff’s application under r 21.04(1) of the Rules, I am satisfied that the plaintiff has proved service on the defendant of the Service Documents in accordance with the Service Orders.[17]

    [17]Which is, of course, without prejudice to any rights of the defendant to seek to set aside service or any judgment pursuant to rr 7.04 or 21.07 of the Rules, respectively.

  1. I also add that, even if it had been necessary or appropriate to take into account the question of whether an arguable case had been shown, or whether the Supreme Court of Victoria is clearly an inappropriate forum, no different result would have followed on this application. Having regard to the pleaded case, it is apparent that there is an arguable case, which is reinforced when regard is also had to the existence and terms of the Loan Agreements. As to the question of forum, the Loan Agreements record that the parties expressly agreed to the exclusive jurisdiction of the courts of Victoria, and that the Loan Agreements were to be governed by the laws of Victoria.

  1. The end point for this aspect of the applications is that, pursuant to r 7.07(1) of the Rules, leave should be granted to the plaintiff to proceed against the defendant by making an application for judgment in default of appearance pursuant to r 21.04(1) of the Rules in respect of the Debt Claim. For the avoidance of doubt, in reaching this conclusion I have also been cognisant of, and taken into account, the Court’s obligations under the CP Act, including ss 8 and 9 of that Act.

Plaintiff’s application for judgment in default of appearance pursuant to r 21.04(1) of the Rules in respect of the Debt Claim

  1. The principles applicable to an application for judgment in default of appearance pursuant to r 21.04(1) have been addressed in numerous authorities and are well known. They were addressed recently by Elliott J in Foris GFS Australia Pty Ltd v Manivel (Foris GFS),[18] from which I have heavily borrowed in that which follows below.[19]

    [18](2022) 67 VR 561, [25]–[60].

    [19]Including footnotes where appropriate.

  1. Order 21 of the Rules addresses judgment in default of appearance or a pleading and is (relevantly) in the terms earlier referred to. As is apparent from the terms of the rules set out above, rr 21.03 and 21.04 govern specific types of default judgments. Rule 21.03 applies to a judgment for the recovery of a debt, damages or property. In the context of r 21.03(1), ‘debt’ means a ‘debt or liquidated demand’.[20] It refers to a pecuniary demand where the amount due is fixed and specific, or where it can readily be reduced to certainty by a mathematical calculation.[21] No issue about these matters arises in this case as the plaintiff’s claim is clearly a debt claim.

    [20]City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463, 468.3 (McInerney J).

    [21]Ibid.

  1. Rule 21.04 relates to applying for default judgment for claims other than for the recovery of a debt, damages or property. However, and as mentioned, by reason of the terms and operation of r 21.03(1.2), it also has an extended sphere of operation in respect of debt or damages claims in a currency that is not Australian dollars.

  1. In relation to the principles to be applied when considering applications for default judgment under r 21.04(1), and as observed by Elliott J in Foris GFS,[22] the authorities establish that:

    [22](2022) 67 VR 561, [30].

1)   Traditionally, when considering whether to grant default judgment, the courts confined themselves to the facts alleged in the statement of claim.[23]

[23]Phonographic Performance Ltd v Maitra [1998] 2 All ER 638, 643G (Lord Woolf MR); Young v Thomas [1892] 2 Ch 134, 137.7 (Bowen LJ).

2)   The effect of not filing an appearance is that the allegations in the statement of claim are taken to be admitted.[24] 

[24]Victorian Workcover Authority v White [2021] VSC 458, [13] (Connock J); Yang v Finder Earth Pty Ltd [2019] VSCA 22, [24] (Maxwell P, Tate and Emerton JJA).

3)   The particulars referred to and served with the statement of claim are part of the statement of claim for this purpose.[25]

4)   The statement of claim will be sufficient to ground the requested relief if ‘each element of the relevant civil wrong is properly and discretely pleaded’.[26]

5)   Ordinarily, the court will not look at any affidavit or other material which establishes additional facts that should have been pleaded in the statement of claim.[27] However, in appropriate circumstances, a court may permit an applicant for default judgment to rely upon limited further evidence in relation to the relief sought, provided that evidence does not alter the case as pleaded.[28]

[25]United Telephone Co v Smith (1889) 61 LT 617, 618.1 (Chitty J).

[26]Macquarie Bank Ltd v Seagle (2005) 146 FCR 400, 406–407 [24] (Conti J), quoted with approval in Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4) (2016) 120 IPR 133, 146 [63] (Bromwich J).

[27]Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1, 21 [63] (Gordon J).

[28]Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4) (2016) 120 IPR 133, 146 [65]; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1, 21 [61]–[63]; Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665, 678–679 [48]–[51] (Kiefel J).

  1. I add that in Foris GFS,[29] Elliott J also helpfully addressed issues regarding the Court’s ability to grant relief beyond that referred to in the statement of claim, and the position regarding declarations in the context of applications for default judgment. These matters are not relevant for present purposes.

    [29](2022) 67 VR 561, [31]–[42], [71]–[73].

  1. Having considered the terms and operation of the relevant rules, the material before the Court, and taken into account the Court’s obligations under the CP Act, I am satisfied that it is appropriate for the Court to give judgment in default of appearance in favour of the plaintiff in respect of the Debt Claim (including interest plus the relevant prescribed costs). Again, my reasons can be briefly stated.

  1. The prohibition in r 7.07(1) of the Rules on proceeding against the defendant (as a person served out of Australia who has not filed an appearance) no longer engages because I have determined that leave is to be granted to the plaintiff to proceed against the defendant by way of an application for judgment in default of appearance pursuant to r 21.04(1) of the Rules in respect of the Debt Claim. Consequently, attention now turns to the requirements of r 21.01 of the Rules.

  1. As was the case in Foris GFS,[30] in this case each of the relevant requirements in r 21.01 of the Rules, which enables a plaintiff to apply for judgment in default of appearance, have been satisfied. The proceeding was commenced by writ; the defendant has failed to file an appearance within the relevant time or at all; the plaintiff filed a request that the Prothonotary conduct a search for an appearance; the plaintiff has filed the Service Affidavits, which prove service of the Service Documents on the defendant out of Australia; and there is a statement of claim for the purposes of obtaining relief under r 21.04 of the Rules. I elaborate a little below on some of these matters, and other considerations relevant to the exercise of my discretion, which is now enlivened.

    [30](2022) 67 VR 561.

  1. First, in addition to a request to search for an appearance being filed by the plaintiff with the Prothonotary, my Associates reviewed the Court file and satisfied themselves that no appearance had been filed by the defendant.

  1. Second, the Service Affidavits prove service of the Service Documents, including the writ and statement of claim and Form 7AAA Notice, on the defendant pursuant to the Service Orders. I also note in this context that the Service Orders allowed for substituted service in a number of ways, including by leaving the sealed envelopes at specified addresses, posting the envelopes by prepaid registered post to the said addresses, and emailing the Service Documents to a known and specified email address. The Service Affidavits establish that these steps were undertaken.

  1. Third, the Form 7AAA Notice served on the defendant appropriately identified the grounds of r 7.02 of the Rules relied upon by the plaintiff to justify the service of the writ out of Australia without the leave of the Court. As I have earlier said, I am satisfied on the material before me that the Debt Claim falls within at least r 7.02(b)(iv) of the Rules.

  1. Fourth, the statement of claim sufficiently grounds the requested relief. It includes allegations regarding: the relevant Loan Agreements and their terms; the requirements to pay interest and default interest; the rates of interest; the specified repayment dates; the dates on which the loans were advanced; demands for repayment of principal and interest subsequent to the passing of the repayment dates; and the defendant’s failure to repay the advances or any amounts of interest.

  1. Further, the amounts claimed in the writ and statement of claim are expressed to be in Singapore dollars, additional interest is sought from the date of the issue of the proceedings, and an order for costs is also sought.

  1. Fifth, although the Court will not ordinarily consider affidavit material establishing additional facts not pleaded in respect of an application under r 21.04 of the Rules, as observed by Elliott J in Foris GFS,[31] in appropriate circumstances a court may permit an applicant for default judgment to rely upon limited further evidence in relation to the relief sought, provided that the evidence does not alter the case as pleaded. Although I have had regard to the affidavit of Mr Pytel in the context of the leave applications under r 2.07(1) of Chapter II of the Rules, and under r 7.07(1) of the Rules, Mr Pytel’s affidavit does not in any way seek to alter the case as pleaded, or facts relied on. I note in this context that, in substance, the affidavit exhibits documents from the Court file, states that the defendant has failed to enter an appearance within the time required or at all, and sets out the calculation of interest and costs. Further and in any event, even if this affidavit is put to one side, I would reach the same result and make the same orders, noting also that the interest calculations are mechanical and can be determined by reference to the allegations in the statement of claim (as they have been), and that the costs to be allowed are prescribed amounts.

    [31](2022) 67 VR 561, [30(5)].

  1. Sixth, there is no doubt that the Court can give judgment for a debt claim made in a foreign currency, or that this is the character of the Debt Claim in the writ and statement of claim in this proceeding. See, for example, Weatherbeeta Limited v Hammersmith Nominees Pty Ltd (No 2).[32]

    [32][2019] VSC 713, [5]–[12] and the cases there cited.

  1. I add for completeness that, although it is open to the Court to give judgment in a foreign currency, converted to the Australian dollar equivalent amount as at the date of judgment where a party in whose favour judgment is to be given elects to do so, no such election was made in this case. It is therefore not necessary to consider or decide whether such an election can be made in circumstances where judgment in default of appearance is being given pursuant to r 21.04(1) of the Rules in respect of a claim for a debt in a currency other than Australian dollars.

  1. Seventh, although the second of the Service Affidavits exhibited the sealed writ and statement of claim as required by r 6.17 of the Rules, Mr Pytel’s affidavit also exhibited, in error, a County Court writ in respect of the same claim. The plaintiff’s solicitor informed the Court that the proceeding had originally been issued in the County Court of Victoria, but was discontinued because their Singapore agent advised that any judgment orders made would need to be made by the Supreme Court of Victoria if they were to be enforceable in Singapore. In the circumstances, I do not consider that this matter, whether alone or in combination with any other circumstances, militates against giving the default judgment sought under r 21.04(1) of the Rules.

  1. Finally, with respect to the question raised on the materials as to whether or not the Service Orders required an affidavit of service to be filed and served no later than 10 January 2025, and the question of whether that would mean that the second of the Service Affidavits could not be relied upon, I do not consider this to be an issue. Self-evidently there is a slip in the Service Orders because there are two paragraphs numbered ‘1’. However, in my view it is plain that paragraph 2 of the Service Orders, which requires ‘the steps set out in paragraph 1 of this order’ to be completed by 4:00pm on 10 January 2025, relates to the steps in the first paragraph of the order regarding the service of the Service Documents. It does not apply to the second paragraph numbered ‘1’, which deals with the filing of an affidavit of service. Even if that had not been the case, I would have extended the time for filing the second of the Service Affidavits, now for then, in any event.

Conclusion and proposed orders

  1. Subject to addressing the precise form of orders and the calculation of costs and interest with the plaintiff’s solicitor:

1) The plaintiff’s application for leave pursuant to r 2.07(1) of the Chapter II Rules to seek to enter through the registry judgment in default of appearance against the defendant pursuant to r 21.03(1)(a) of the Rules in respect of the Debt Claim, should be dismissed.

2) The plaintiff should be granted leave pursuant to r 7.07(1) of the Rules to proceed against the defendant by making an application for judgment in default of appearance pursuant to r 21.04(1) of the Rules in respect of the Debt Claim.

3) Judgment in default of appearance in respect of the Debt Claim (including interest) and the prescribed costs should be given in favour of the plaintiff pursuant to r 21.04(1) of the Rules.

  1. After delivering my reasons ex tempore, I addressed the question of costs and interest with the plaintiff’s solicitor and requested that a revised proposed form of judgment be provided to my chambers, together with the details of the calculations of interest and prescribed costs. Following receipt and consideration of this information, and after carrying out my own calculations of interest based on the allegations in the statement of claim,[33] judgment in default of appearance was given in favour of the plaintiff on 18 June 2025 in the following terms:[34]

    [33]Interest on the first loan was calculated at the rate of 4 per cent per annum from the date of the advance until the repayment date, being 360 days (SGD39,452.05) and the default rate of 10 per cent per annum from the day after the repayment date until the date of judgment, being 1,116 days (SGD305,479.45). Interest on the second loan was calculated at the rate of 4 per cent per annum from the date of the advance until the repayment date, being 365 days (SGD40,000) and the default rate of 10 per cent per annum from the day after the repayment date until the date of judgment, being 1,085 days (SGD296,986.30). Because the pleaded interest rates are fixed ‘per annum’ rates and not daily rates, the amount of interest payable per annum does not increase in the 2024 leap year even though there is an extra day in that year.

    [34]The costs comprised prescribed allowable professional costs of AUD4,960 plus filing fees paid for the writ (AUD4,655.50) and the summons seeking substituted service (AUD2,028.20). The filing fee claimed in respect of the filing of the County Court writ has not been allowed.

    DEFAULT JUDGMENT FOR DEBT

    THE JUDGMENT OF THE COURT IS THAT:

    1.        The defendant pay the plaintiff:

    (a)the sum of SGD2,000,000;

    (b)interest of SGD681,917.80; and

    (b)costs fixed in the sum of AUD11,643.70.

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

0

Victorian WorkCover Authority v White [2021] VSC 458
Xie v Zhang [2025] VSC 263
King v Linkage Access Ltd [2022] VSC 158