Gunns Finance Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Marks-Isaacs

[2015] NSWDC 412

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Gunns Finance Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Marks-Isaacs [2015] NSWDC 412
Hearing dates:	2 April 2015
Date of orders:	02 April 2015
Decision date:	02 April 2015
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Judgment in favour of the plaintiff for the sum of $194,986.90. (2)   Defendant to pay the plaintiff’s costs of proceedings on an indemnity basis. (3)   Order the plaintiff to notify the defendant of these orders by letter sent to the defendant’s address for service, to be posted on or before 9 April 2015. (4)   To the intent that any entitlement of the defendant to set aside these orders be preserved if there exists a good cause for his absence today, entry of these orders to be stayed for 28 days.
Catchwords:	LIQUIDATED CLAIM – absence of defendant – application for judgment without trial – whether requirement for notice of hearing – discretionary factors – indemnity costs provision in agreement
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 29.7, r 36.16
Cases Cited:	Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87 NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681 Rail Corporation New South Wales v Leduva Pty Limited [2007] NSWSC 800 Smirski v Macander [2010] NSWSC 929
Texts Cited:	Ritchie's Uniform Civil Procedure NSW
Category:	Principal judgment
Parties:	Gunns Finance Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (plaintiff) Simon Marks-Isaacs (defendant)
Representation:	Counsel: Mr D C Price (plaintiff)   Solicitors: TurksLegal (plaintiff)
File Number(s):	2014/112914
Publication restriction:	None

Judgment

1. In the period from 2006 to 2009 the defendant, Simon Marks‑lsaacs, applied for and received finance from Gunns Finance Pty Ltd (Receivers and Managers Appointed)(In Liquidation) ("Gunns Finance"), a company now in liquidation, to invest in Gunns Plantations Ltd, the manager of a timber growing operation.  That investment was not successful and in 2011 Mr Marks‑Isaacs ceased making interest payments on the finance obtained.

2. Proceedings for recovery of the debt were commenced by Gunns Finance by a statement of claim on 14 April 2014. The matter was listed for hearing today. When the matter was called, Mr Marks‑Isaacs did not appear. Gunns Finance applied for the Court to give judgment under Uniform Civil Procedure Rules 2005 r 29.7 without proceeding to trial. Rule 29.7(3) provides:

“(3) If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of:

(a) the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and

(b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff’s claim or costs.”

3. The commentary in Ritchie's Uniform Civil Procedure NSW at [29.7.2] indicates that a "party is absent" only where there is proof that notice of the hearing date was given to that party and cites NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681. That such a requirement exists (as distinct from notice being a factor relevant to discretion) is difficult to discern from the terms of r 29.7 or from the words "party is absent", and the necessity for such a requirement might be doubted given the ability of the Court to set aside the judgment obtained in the absence of a party, whether or not given notice, under Uniform Civil Procedure Rules 2005 r 36.16(2)(b).

4. Rule 29.7(3) refers to the circumstance when "a defendant does not appear" whereas subr (2) refers to if "any party is absent". There may be no difference between a party not appearing and being absent, but in any event, it is difficult to ascertain any reason for a requirement of notice in the one circumstance and not in the other.

5. Even if textual considerations do not compel proof of notice to establish “absence” or non-appearance, nevertheless notice is a crucial factor in the discretion granted by r 29.7(3). There is obiter to this effect in Gregory (at [20]) although notice was found to have been given (at [21]). See also Smirski v Macander [2010] NSWSC 929. I prefer the approach referred to in the second subparagraph of [29.7.2] of Ritchie's where the relevant considerations to determine whether to proceed in the absence of a party are listed thus:

“(i) whether the party has been provided with due notice of the hearing;

(ii) the nature of any explanation for the party's absence;

(iii) the apparent urgency of the matter;

(iv) the nature and extent of any hardship the ex parte order may cause; and

(v) whether such an order can be set aside.”

6. Whether or not notice is required before the provisions of r 29.7(3) can be applied is not crucial here as notice has been established. Gunns Finance has proved that correspondence was sent to Mr Marks‑Isaacs including correspondence some two months ago informing him of today's hearing date. That correspondence was sent to the postal address that he provided as his address for service on a defence that was filed on 3 September 2014.

7. As to the other factors I have listed above, there is before me no explanation for Mr Marks‑Isaacs’ absence. I note that he was directed to take steps in relation to a cross‑claim that he indicated previously to the Court that he intended to file, but no cross‑claim was filed. There is before me no particular urgency identified or any particular hardship in the matter proceeding or not proceeding today. There remains an ability to set aside the judgment given in the absence of a party under r 36.16, as earlier mentioned.

8. In any event, I propose to include an additional order to specifically deal with the position of Mr Marks‑Isaacs if his absence was unintentional. 

9. I do not regard the absence of hardship to Gunns Finance, if the matter did not proceed today, or the lack of evidence of urgency, as weighty in the present case.  Costs will be incurred if the matter does not proceed today. Costs inevitably result from a delay and there is no evidence to indicate that the position will be any different if the matter is adjourned.

10. The present matter involves a liquidated claim. The defendant did not appear. There is evidence of the amount due and of the absence of any payments or other credits since June 2011. In that circumstance, I propose to give judgment without proceeding to trial in accordance with r 29.7(3).

11. I note that interest of today is waived as a consequence of all calculations in the evidence being based on a judgment date of yesterday.  I note also that the agreement provided in cl 3.2 that the plaintiff's costs in enforcing provisions of the agreement would be on an indemnity basis.  Generally, those contractual provisions are given effect: see Rail Corporation New South Wales v Leduva Pty Limited [2007] NSWSC 800 at [18], Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87 at [12]-[13].

12. The orders of the Court are:

1. Judgment in favour of the plaintiff for the sum of $194,986.90.

2. Defendant to pay the plaintiff’s costs of proceedings on an indemnity basis.

3. Order the plaintiff to notify the defendant of these orders by letter sent to the defendant’s address for service, to be posted on or before 9 April 2015.

4. To the intent that any entitlement of the defendant to set aside these orders be preserved if there exists a good cause for his absence today, entry of these orders to be stayed for 28 days.

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Amendments

20 September 2016 - Hearing date amended from 2 April 2016 to 2 April 2015.

Decision last updated: 20 September 2016