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Foris GFS Australia Pty Ltd v Manivel

Foris GFS Australia Pty Ltd v Manivel

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Case Copied 13 May 2022 37 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2022 00272

FORIS GFS AUSTRALIA PTY LTD (ACN 150 651 004)	1^st plaintiff
and
FORIS AU PTY LTD (ACN 640 770 958)	2^nd plaintiff
v
THEVAMANOGARI MANIVEL AND OTHERS	Defendants

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 13 May 2022
DATE OF JUDGMENT:	13 May 2022
DATE OF REASONS:	26 August 2022
CASE MAY BE CITED AS:	Foris GFS Australia Pty Ltd v Manivel
MEDIUM NEUTRAL CITATION:	[2022] VSC 482

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PRACTICE AND PROCEDURE – Default judgment – Judgment in default of appearance – Relief sought beyond the statement of claim – Declaratory relief – Substituted service – Sending an email “with” documents – Service by way of a link to a shared online drive – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 6.07, 21.01, 21.03, 21.04, 59.01.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs	Mr M McKillop	Cornwalls
For the 7^th defendant	No appearance

IntroductionA.

Default judgment orderedA.1

Foris GFS Australia Pty Ltd and Foris AU Pty Ltd (“the Plaintiffs”) are part of the corporate group that operates the cryptocurrency trading platform “Crypto.com”.

On 6 May 2022, the Plaintiffs applied for default judgment against the seventh defendant, Thilagavathy Gangadory (“Gangadory”). Gangadory had failed to file an appearance. After the Plaintiffs addressed numerous material problems with their application as originally made, on 13 May 2022 default judgment was ultimately granted in favour of the first plaintiff and orders were made accordingly (“the Default Judgment”). Although formal reasons are not strictly necessary on an application for a default judgment, in light of some of the issues that arose, it is appropriate that reasons be published.

BackgroundA.2

The Plaintiffs made claims against a total of 8 defendants. The proceeding relates to a mistaken payment allegedly made to the first defendant, Thevamanogari Manivel (“Manivel”). It was alleged that in May 2021, instead of refunding $100.00 as intended, $10,474,143.00 was erroneously transferred (“the Wrongful Payment”) to Manivel after an account number was accidentally entered into the payment amount field by a representative of the second plaintiff. Extraordinarily, the Plaintiffs allegedly did not realise this significant error until some 7 months later, in late December 2021.

After making various enquiries of the Commonwealth Bank of Australia (“the Commonwealth Bank”),[1] the first plaintiff commenced this proceeding by writ in early February 2022. The following day, without notice to Manivel, it sought freezing orders over Manivel’s bank account and her assets in an amount reflecting the Wrongful Payment. On 7 February 2022, freezing orders were made against Manivel.[2] However, the Plaintiffs made subsequent applications to join additional defendants and sought freezing orders in respect of each of them. The Plaintiffs produced evidence to the effect that Manivel had transferred the bulk of the Wrongful Payment by various payments to the third to eighth defendants. As a result, a large body of evidence has been put before the court. Naturally, references…

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.

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Details

Case: [2022] VSC 482
Decision Date: 13 May 2022

CaseChat Overview and Summary

The dispute in Foris GFS Australia Pty Ltd v Manivel involved the applicant, Foris GFS, seeking a default judgment against the defendant, Manivel. The matter was heard in the Supreme Court of Victoria. The applicant sought several forms of relief, including a declaration that a lease agreement had been terminated, an order for possession of certain premises, and damages for unpaid rent. The defendant, Manivel, had failed to appear or defend the proceedings, leading Foris GFS to apply for a judgment in default of appearance.

The central legal issue before the court was whether the application for default judgment could proceed, particularly in light of the fact that Foris GFS sought relief beyond the terms of the initial statement of claim. Additionally, the court had to consider the validity of the service of the originating process, given that it had been served by sending an email with a link to a shared online drive, rather than by traditional means such as personal delivery or registered post. The court also needed to assess whether the substituted service complied with the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

The court found that Foris GFS had not strictly adhered to the procedural requirements set out in the Rules, particularly in relation to the service of the originating process. The court held that the manner in which the email was sent, which included a link to a shared online drive, did not meet the necessary standards for substituted service as outlined in Rule 21.03. Consequently, the court determined that the service was invalid, and therefore, the application for default judgment could not proceed. The court dismissed the application on the basis that the procedural missteps rendered the entire application defective.

Orders