In the matter of Netwireless Pty Ltd (in liq)

[2024] NSWSC 244

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Netwireless Pty Ltd (in liq) [2024] NSWSC 244

Hearing dates:

4 March 2024

Date of orders:

4 March 2024

Decision date:

04 March 2024

Jurisdiction:

Equity - Corporations List

Before:

McGrath J

Decision:

Default judgment against the defendants

Catchwords:

CIVIL PROCEDURE — Default judgment — Where no defence filed and no steps taken by the defendant in the proceedings — HELD — Default judgment entered

Legislation Cited:

Service and Execution of Process Act 1992 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Wily v King [2010] NSWSC 352

Category:

Principal judgment

Parties:

Liam Bailey in his capacity as Liquidator of Netwireless Pty Ltd (In Liquidation) (First Plaintiff/First Applicant)
Netwireless Pty Ltd (In Liquidation) (Second Plaintiff/Second Applicant)
Trevor Pangbourne (First Defendant/First Respondent)
Patricia Pangbourne (Second Defendant/Second Respondent)

Representation:

Counsel:
O’Conner N (Solicitor – Plaintiffs/Applicants)

Solicitors:
BBW Lawyers (Plaintiffs/Applicants)
No appearance (Defendants/Respondents)

File Number(s):

2023/00324666

Publication restriction:

Nil

JUDGMENT — EX TEMPORE (REVISED 13 mARCH 2024)

INTRODUCTION

1. This is an application by way of notice of motion filed 28 February 2024 for default judgment for a liquidated claim pursuant to r 16.6 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The application is brought by the plaintiffs, who are Liam Bailey in his capacity as official liquidator of Netwireless Pty Ltd and Netwireless Pty Ltd (in liquidation).

2. The first defendant is Trevor Pangbourne and the second defendant is Patricia Pangbourne.

3. The amount of the default judgment that is sought against each of the defendants is the amount of $335,850.82. In addition, the plaintiffs seek judgment against each of the defendants for their costs, although the amount of those costs has not been provided to the court.

PROCEDURAL HISTORY & EVIDENCE

4. The proceedings were commenced by originating process on 13 October 2023.

5. On 6 November 2023, Black J made orders that the matter proceed on pleadings, that the plaintiffs file and serve a statement of claim by 4pm on 27 November 2023, that the defendants file and serve their defence by 4pm on 11 December 2023, and that the matter be stood over for further directions on 12 February 2024. At that time, a notation was made by Black J that the defendants had foreshadowed in correspondence sent to the plaintiffs’ solicitor that they might seek to transfer the proceedings to Victoria, and that any such application would need to proceed by interlocutory process returnable in the Corporations Motions List in due course. In addition, an order was made requiring the plaintiffs to use their best endeavours to notify the defendants of those orders.

6. On 22 November 2023, the statement of claim was filed by the plaintiffs in accordance with the orders that had been made by Black J on 6 November 2023.

7. In support of the notice of motion is an affidavit of Nicholas O’Connor sworn 28 February 2024 (O’Connor affidavit). Attached to the O’Connor affidavit are two further affidavits, each sworn by Daniel Fenton on 31 January 2024. Each of those affidavits attest to service of the statement of claim on each of the defendants on 23 January 2024 at their place of residence, being in Sunbury, Victoria. In addition to service of the statement of claim, the affidavit of Mr Fenton also attests to the service of a letter from BBW Lawyers (being the lawyers for the plaintiffs) dated 10 January 2024 together with the requisite form 1 under the Service and Execution of Process Act 1992 (Cth).

8. Accordingly, I am satisfied that there has been proper service of the statement of claim, together with the relevant notice, on the defendants.

9. On 12 February 2024, the proceedings came before Black J, at which time the matter was stood over for further directions on 26 February 2024 and a direction was made that the plaintiffs use their best endeavours to notify the defendants of the orders. At that time, Black J also made a notation that the plaintiffs intended to file a notice of motion for default judgment if the defendants had not filed a defence to the statement of claim by 20 February 2024.

10. By letters dated 16 February 2024, the plaintiffs informed the defendants of the orders that had been made on 12 February 2024.

11. On 26 February 2024, the matter was before Black J again, at which time the plaintiffs were directed to file an interlocutory process seeking default judgment together with the affidavits in support (to be served by 4pm on 28 February 2024), the defendants were directed to file and serve any evidence in response by 4pm on 1 March 2024, and the proceedings were listed for the application for default judgment in the Corporations Motions List on 4 March 2024.

PRESENT PROCEEDINGS

12. There has been no appearance by the defendants in the proceedings, including after they were called outside court immediately prior to this judgment.

13. The defendants have failed to file any defence or take any other step in the proceedings.

14. The O’Connor affidavit states that the amount owing to the plaintiffs at the time of the commencement of the proceedings in respect of the cause of action for which the proceedings were commenced was $318,584.00. Mr O’Connor also states that since the commencement of the proceedings, no payments have been received or credits accrued to reduce the amount of the claim. The calculation of the claim as at the date of the swearing of the O’Connor affidavit (28 February 2024) is the amount of $341,126.82. That amount is calculated as being the original amount of $318,584.00 together with interest of $17,266.82, filing fees of $3,550.00, service fees of $130.00, and solicitors’ fees of $1,596.00.

15. Accordingly, excluding costs, the amount owing as stated in the statement of claim of $318,584.00 together with the interest amount set out in Mr O’Connor’s affidavit of $17,266.82, totals $335,850.82.

CONSIDERATION

16. I am satisfied that this is an appropriate matter in which I should give default judgment in accordance with r 16.6 of the UCPR. The principles stating the basis on which the court may make such a judgment are well-established and are set out in Wily v King [2010] NSWSC 352, by Barrett J at [16]–[17] as follows:

16 The philosophy underlying r 16.6 is that, because provision is made for the filing of a defence in response to a statement of claim and the statement of claim, of its nature, should contain all allegations necessary to make good the entitlement to the asserted cause of action, failure to file a defence should be taken to represent acceptance of the statement of claim and admission of the several allegations in it.

17 The important word in r 16.6, for present purposes, is “may”. The court is empowered to order judgment by default in cases within this rule but is not bound to do so. In Charles v Shepherd [1892] 2 QB 622, where judgment was sought upon default in delivery of a defence, Lord Esher MR said (at 624):

… the Court is not bound to give judgment for the plaintiff, even though the statement of claim may on the face of it look perfectly clear, if it should see any reason to doubt whether injustice may not be done by giving judgment; it has a discretion to refuse to make the order asked for.

17. Although the rule does provide me with a discretion, I am satisfied, given the lack of the filing of a defence, and the lack of any step taken by the defendants in the proceedings, that a default judgment should be issued by the court.

18. In the interests of candour, Mr O’Connor, who appeared on behalf of the plaintiffs, provided me with a copy of an email which had been received on 4 March 2024 at 9.02am from the first defendant, Mr Pangbourne, in which he set out a number of matters concerning the lack of assets and legal representation that he has in relation to the proceedings. None of those matters appear to me to be matters which relate to any form of defence, and I note that in any event no defence has been filed.

19. In the circumstances, I consider it appropriate that the amount of the default judgment that I should make should be the amount of the claim as well as interest up to judgment, and I also award the plaintiffs their costs of the proceedings.

CONCLUSION

20. Accordingly, I make the following orders:

1. Judgment for the plaintiffs against the first defendant for $335,850.82.

2. Judgment for the plaintiffs against the second defendant for $335,850.82.

3. The first defendant to pay the plaintiffs’ costs.

4. The second defendant to pay the plaintiffs’ costs.

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Decision last updated: 13 March 2024