Di Liristi v Matautia Developments Pty Ltd (No 5)

[2021] NSWSC 662

Supreme Court

New South Wales

Medium Neutral Citation:	Di Liristi v Matautia Developments Pty Ltd (No 5) [2021] NSWSC 662
Hearing dates:	17 March 2021
Date of orders:	17 March 2021
Decision date:	17 March 2021
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	The plaintiff’s application for default judgment against the second defendant is dismissed.
Catchwords:	CIVIL PROCEDURE – Default judgment – Unsuccessful application for default judgment
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural rulings
Parties:	Antonio Di Liristi (Plaintiff) Matautia Developments Pty Ltd (First Defendant) Michael Bernard Fowler (Second Defendant) Brian Garnet Wheaton (Fourth Defendant)
Representation:	Counsel: A Avery-Williams (First and Fourth Defendants) Solicitors: Plaintiff (Self Represented) Centurion Lawyers (First and Fourth Defendants)
File Number(s):	2020/71955
Publication restriction:	None

REVISED EX TEMPORE Judgment

1. The plaintiff seeks judgment in default against the second defendant pursuant to Pt 16, r 16.7 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2. In support of his application, the plaintiff relies on his affidavits of service of 25 May 2020, 6 March 2021 and 17 March 2021.

3. In each of those affidavits, the plaintiff refers to his service of the summons on the second defendant, Michael Bernard Fowler.

4. This issue was first raised by the plaintiff on Friday 12 March 2021. As I said to the plaintiff at the time, I would not be acceding to his request for judgment in default unless there was a proper basis for judgment to be entered.

5. The plaintiff says that he has again attempted to contact the second defendant, but the plaintiff informs me from the bar table that the second defendant has blocked one email address that the plaintiff uses and thus he has tried another email address. The plaintiff submits that he has informed the second defendant of the application because the second defendant has read his emails.

6. However, there are two more fundamental problems with this application.

7. Firstly, UCPR Pt 16, specifically applies only to proceedings commenced by statement of claim (see r 16.1).

8. Secondly, as set out in r 16.7, (being the rule on which the plaintiff relies), a default judgment under r 16.7 may only be entered if the plaintiff’s claim against the defendant in default is for unliquidated damages only. In those circumstances, judgment may be given for the plaintiff against the defendant for damages to be assessed and for costs.

9. The plaintiff relies on an amended summons filed on 28 July 2020. As set out in paras 20, 21 and 22, the plaintiff seeks declarations against the second defendant, being that the second defendant has aided and abetted breaches of the agreement by the first defendant, has breached undertakings and is responsible and liable for the actions and liabilities of the first defendant.

10. The simple point is that the plaintiff does not seek unliquidated damages against the second defendant and thus he is not entitled to a judgment in default pursuant to r 16.7.

11. Halfway through this ex tempore judgment, indeed at the point I am at, the plaintiff rose to his feet to say that he wanted to withdraw the application under r 16.7, that is (having heard my comments). He wishes to pursue the application under r 16.3.

12. The plaintiff now relies on r 16.3 which provides that:

16.3 Procedure where defendant is in default

(1)  If a defendant is in default, the plaintiff—

(a)  may apply for judgment to be given under this Part, according to the nature of his or her claim for relief, against the defendant in default, and

(b)  may carry on the proceedings against any other party to the proceedings.

13. There remain two problems with this amended application:

1. again, Pt 16 only applies to proceedings commenced by statement of claim, and these proceedings were not commenced by statement of claim; and

2. r 16.3 provides that the plaintiff may apply for judgment “according to the nature of his or her claim for relief”. The nature of his claim for relief against the second defendant is declaratory. I could not make an order that under r 16.3 without at least some arguable satisfaction that the plaintiff is entitled to the declaratory orders he seeks. There is no evidence which would support such an entitlement.

14. In the circumstances the application is dismissed.

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