Laminex Group Pty Ltd v Dwan - [2023] VSC 595

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST – CONNOCK J

S ECI 2023 01327

LAMINEX GROUP PTY LIMITED (ACN 004 093 092)	Plaintiff
v
SCOTT DANIEL DWAN	Defendant
JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2023
DATE OF JUDGMENT:	6 October 2023 (Ex tempore; revised 6 October 2023)
CASE MAY BE CITED AS:	Laminex Group Pty Ltd v Dwan
MEDIUM NEUTRAL CITATION:	[2023] VSC 595

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PRACTICE AND PROCEDURE - Leave to seek to enter judgment in default of appearance – Entry of judgment in default – Judgment in default of appearance – Claim for recovery of a debt under a guarantee – Allegations in statement of claim taken to be admitted – Defendant failed to file an appearance – Entry of judgment a ministerial act of the Prothonotary – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 21.01, 21.03, 21.04 – Engagement of Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) ch II r 2.07(1) – Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) r 2.07(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Stewart (solicitor)	Turks Legal
For the Defendant	No appearance	No appearance

HIS HONOUR:

Introduction and Summary

The plaintiff wishes to enter judgment in default of appearance against the defendant pursuant to rr 21.01 and 21.03(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) in respect of a claim for the recovery of a debt under a guarantee, together with interest and costs.

The plaintiff relied upon an affidavit of service of Thomas Banfield affirmed on 28 September 2023, an affidavit of the plaintiff’s solicitor, Julia Stewart, sworn 28 September 2023, and an affidavit of Peter Xu affirmed on 27 June 2023 that was previously relied upon in support of the plaintiff’s earlier successful substituted service application.

The plaintiff also relied upon an outline of submissions filed on 30 September 2023, and revised outline of submissions that was provided to the court shortly before the hearing today and corrected two minor matters.

I have read and considered this material.

The principal amount alleged to be owing is $277,012.01 (Principal Amount). It is alleged in the statement of claim that it was a term of the underlying goods supply agreement between the plaintiff and ABC Manufacturing Pty Ltd (ABC) (Supply Agreement) that was the subject of the defendant’s guarantee in favour of the plaintiff, that interest would accrue on overdue payments under the Supply Agreement at a rate of 4% above the rate prescribed by the Penalty Interest Rates Act 1983 (Vic) from time to time (Contract Interest Rate).

At all relevant times the penalty interest rate prescribed under the Penalty Interest Rates Act 1983 (Vic) has been 10% per annum.

In other circumstances the administrative step of seeking to enter judgment in default of appearance would be taken by the plaintiff through the Prothonotary in accordance with the…

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.

Continue reading Laminex Group Pty Ltd v Dwan

Details

AGLC: Laminex Group Pty Ltd v Dwan [2023] VSC 595
Case: [2023] VSC 595
Decision Date: 6 October 2023 (Ex tempore; revised 6 October 2023)

CaseChat Overview and Summary

Laminex Group Pty Ltd sued Dwan for recovery of a debt under a guarantee, in the Supreme Court of Victoria. The defendant, Dwan, did not file an appearance in response to the proceedings, leading Laminex to apply for leave to enter judgment in default. The court had to determine whether the failure to appear constituted a sufficient ground for granting leave to enter a default judgment and whether such an entry was a proper exercise of the Prothonotary's ministerial duties.

The legal issues centred on the interpretation of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic). Specifically, the court had to consider the circumstances under which leave to enter a default judgment could be granted and the nature of the Prothonotary's role in entering such judgments. The court needed to ensure that the defendant's failure to appear warranted the entry of a default judgment and that the procedure adhered to the prescribed rules.

The court found that the defendant's failure to appear indeed justified the granting of leave to enter a default judgment. It noted that when a defendant does not file an appearance, the allegations in the statement of claim are taken to be admitted. The court emphasised that the entry of a default judgment is a ministerial act performed by the Prothonotary, as per the rules. It held that the Prothonotary's role in such instances is to follow the established procedural requirements meticulously. The court granted the application for leave to enter a default judgment, allowing Laminex to proceed with the enforcement of the debt.

The final orders included granting leave to Laminex to enter a default judgment against Dwan and directing the Prothonotary to enter the judgment accordingly. The judgment reflected the court's determination that Dwan's failure to appear warranted the entry of a default judgment and that the procedural requirements were properly followed.

Orders