Moonwalk Pty Ltd v Assetta Developments Pty Ltd - [2024] VSC 468

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2024 03065

MOONWALK PTY LTD (AS TRUSTEE FOR THE DEGEL TRUST NO 8)	Plaintiff
v
ASSETTA DEVELOPMENTS PTY LTD (IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE AUSTRAK DISCRETIONARY TRUST)	Defendant

---

JUDGE:	COSGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2024
DATE OF JUDGMENT:	9 August 2024
CASE MAY BE CITED AS:	Moonwalk Pty Ltd v Assetta Developments Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 468

---

Catchwords: PRACTICE AND PROCEDURE – Application for default judgment – Defendant’s failure to file an appearance within prescribed period – Defendant’s failure to file a defence within prescribed period – Where plaintiff seeks declaratory relief – Application granted.
Legislation Cited: Civil Procedure Act 2010 (Vic); Supreme Court (General Civil Procedure) Rules 2015 (Vic); Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic).
Cases cited:Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; CGU Insurance Ltd v One.Tel Ltd (in liquidation) (2010) 242 CLR 174; Ellis v Ellis [2015] WASC 77; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (4) (2016) 120 IPR 133; Goldspring v Jordan [2024] NSWCA 158; Metzger v Department of Health and Social Security [1977] 3 All ER 444; Patten v Burke Publishing Co Ltd [1991] 2 All ER 821.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr O Bigos KC with Mr L Freckelton	Arnold Bloch Leibler
For the Defendant	Mr M Assetta and Mr S Martinello in person

HIS HONOUR:

Introduction

In this proceeding, the plaintiff applies by summons filed 26 July 2024 for:

(a) leave pursuant to r 2.07 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) to seek to enter judgment in default of appearance against the defendant; and

(b) orders pursuant to rr 21.01(2) and 21.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (“the Rules”) for judgment in default of appearance against the defendant upon the statement of claim contained in the writ filed on 18 June 2024.

In support of its application the plaintiff relies upon the following material:

(a) the affidavit of Simon John Dollard sworn 23 July 2024;

(b) the affidavit of Jeremy Samuel John Brown affirmed 23 July 2024;

(c) another affidavit of Simon John Dollard sworn 5 August 2024 (in respect of which confidentiality orders are sought); and

(d) a further affidavit of Jeremy Samuel John Brown affirmed on 7 August 2024.

Background

The plaintiff (“Moonwalk”) is the trustee of the Degel Trust No 8 and, in that capacity, it holds an 8% interest in the Assetta Developments Joint Venture (“Assetta Developments JV”). This is an unincorporated joint venture constituted by an agreement made in about June 1999 between, inter alia, the defendant (“Assetta Developments”) and Moonwalk.

Assetta Developments is and was…

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 Moonwalk Pty Ltd v Assetta Developments Pty Ltd

Details

AGLC: Moonwalk Pty Ltd v Assetta Developments Pty Ltd [2024] VSC 468
Case: [2024] VSC 468
Decision Date: 9 August 2024

CaseChat Overview and Summary

Moonwalk Pty Ltd recently sought a default judgment against Assetta Developments Pty Ltd in the Supreme Court of Victoria. The plaintiff, Moonwalk, claimed that Assetta had breached certain contractual obligations and sought both damages and declaratory relief. The dispute arose from a failed commercial agreement, and Moonwalk filed the application for default judgment after Assetta failed to file an appearance or a defence within the prescribed periods.

The court had to determine whether the failure of Assetta to file an appearance or a defence justified granting the application for default judgment. The plaintiff argued that Assetta’s non-compliance warranted the entry of a default judgment. The court examined the relevant statutes and case law to understand the procedural requirements and the consequences of non-compliance. Specifically, the court considered the Civil Procedure Act 2010 (Vic), the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic).

The court found that Assetta's failure to file an appearance and a defence within the prescribed periods justified granting the application for default judgment. The court noted that the statutory provisions and relevant case law supported the entry of a default judgment in such circumstances. The court also considered that the relief sought by Moonwalk, including declaratory relief, was appropriate for a default judgment. Consequently, the court granted the application and entered a default judgment in favour of Moonwalk, awarding the relief sought.

The final orders included the entry of a default judgment in favour of Moonwalk, awarding it the declaratory relief and damages sought. Additionally, the court ordered Assetta to pay Moonwalk’s costs of the application. This decision reinforces the importance of strict compliance with procedural requirements in litigation, highlighting the potential consequences of non-compliance.

Orders