Resolution Media Network v Complete Pantry
[2025] VCC 1300
•4 September 2025 (Ex Tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-24-03912
| Resolution Media Network Pty Ltd (ACN 121 725 764) | Plaintiff |
| v | |
| Complete Pantry Pty Ltd (ACN 635 080 303) | Defendant |
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JUDGE: | HIS HONOUR JUDGE WISE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2025 | |
DATE OF JUDGMENT: | 4 September 2025 (Ex Tempore) | |
CASE MAY BE CITED AS: | Resolution Media Network v Complete Pantry | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1300 | |
REASONS FOR JUDGMENT
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Subject:Contract Law
Catchwords: Contract – debt recovery – media services agreement – advertising services – invoices unpaid – set-off – alternative dispute resolution clause – defendant unrepresented – defendant absent at trial – undefended proceedings – onus of proof – termination of agreement – statutory interest – costs.
Legislation Cited: County Court Civil Procedure Rules 2018 (Vic).
Cases Cited:Re Dysin Investment Partners Pty Ltd [2024] VSC 656, Stone v Smith (1887) 35 Ch D 188; Macquarie Bank Ltd v Seagle (2005) 146 FCR 400; Electrolux Home Products Pty Ltd v Delap Impex KFT (2015) 110 IPR 164.
Judgment: For the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Lipinski | Devonish Harris & Henderson |
| For the Defendant | No Appearance |
HIS HONOUR:
Table of Contents
Introduction
Defendant’s absence at trial
Plaintiff’s witnesses
Factual Background
Statement of Issues
Resolution of Issues
Conclusion & Orders
Introduction
1This case arises out of a commercial dispute between Resolution Media Network Pty Ltd (“the Plaintiff”), a digital media agency, and Complete Pantry Pty Ltd (“the Defendant”), a food distribution business. The Plaintiff sues for a debt said to be owing under a Media Services Agreement made in around June 2023. It says the Defendant authorised significant advertising spending through a series of booking authorisations. The Plaintiff says that it delivered the services and issued invoices totalling $137,653.28. Despite demand, those invoices allegedly remain unpaid. The Plaintiff also seeks statutory interest and costs.
2In its defence, the Defendant did not admit the Agreement, nor its terms. It similarly put the Plaintiff to proof of having approved the advertising the Plaintiff sues upon, the rendering of invoices and the outstanding debt. The Defendant admits having received the Plaintiff’s notice of termination but denies that it is of effect. The Defendant otherwise denies the Plaintiff’s entitlement and calculation of statutory interest.
3The Defendant also asserts that the Plaintiff had committed itself to achieving specified advertising and revenue targets, that it failed to meet those targets, and that this constituted both a breach of contractual duty and a breach of duty of care. The Defendant further claimed that any sums otherwise payable to the Plaintiff should be set off against the losses it allegedly had suffered. It also pleaded that the Plaintiff had not enacted an alternative dispute resolution clause in the Agreement which required certain negotiations to take place before resorting to litigation. The Defendant therefore contended that the proceeding should be dismissed or stayed.
4The matters in paragraph 3 above are matters that the Defendant carries the onus of proving. To the extent that it did not appear at the trial, and therefore did not advance any evidence in support of these defences, based on the principles set out in paragraphs 8 to 10 below, they may be put aside and need not be determined.
5Shortly before trial, the Defendant's solicitors ceased to act, and the Defendant took no steps to secure alternative representation. The director of the Defendant made no application to represent the Defendant under rule 1.17 of the County Court Civil Procedure Rules 2018 nor communicated with the Court from the date of it becoming unrepresented. The Defendant was made aware in two orders of this Court that the trial would proceed in the absence of the Defendant and if the Defendant wished to seek to avoid judgment being entered against them, they must attend Court on 4 September 2025. The Defendant did not attend Court on 4 September 2025. At the commencement of trial on 4 September 2025, the matter was called on inside and outside of the courtroom. The trial therefore proceeded undefended.
6The Plaintiff contends that under clauses 8.4 and 15.9 of the Agreement, the Defendant is liable in debt for the invoiced sums. It argues that the Defendant’s alleged grievances about advertising performance are irrelevant to its clear contractual obligation to pay for approved services, and that no proper basis for set-off has been shown. It submits that the Agreement was lawfully terminated after notice of breach, and that the Defendant’s liability crystallised on termination.
7The below table sets out the alleged amounts outstanding with corresponding invoice numbers.
Invoice # Date Issued Amount 1648953 4 August 2023 $45,931.23 46759 18 August 2023 $1,725.39 1658982 12 September 2023 $48,553.79 1669270 13 October 2023 $41,442.87 TOTAL $137,653.28
Defendant’s absence at trial
8Where a defendant does not appear at the trial of a proceeding the Court may proceed with the trial in its absence: County Court Civil Procedure Rules 2018 (Vic) r49.02. In that case the process to be applied is clear. I adopt the following statement of Waller J in Re Dysin Investment Partners Pty Ltd:[1]
Where a defendant is absent at trial, the plaintiff must still establish their case by evidence in order to obtain judgment. The plaintiff is then entitled to the relief claimed in the statement of claim.
[1][2024] VSC 656 at [23] citing Stone v Smith (1887) 35 Ch D 188, 189 (Kekewich J); Macquarie Bank Ltd v Seagle (2005) 146 FCR 400, 406–7 [24] (Conti J); Electrolux Home Products Pty Ltd v Delap Impex KFT (2015) 110 IPR 164, 169–70 [24] (Farrell J).
9In that case, Waller J summarised the principles regarding the approach of the Court to undefended trials as follows:[2]
[2]Ibid at [25] – [28].
A lawyer has implied authority to make admissions on behalf of their client during litigation, either for the purposes of dispensing with proof at trial, or in certain other respects.
…
Whether an admission in a defendant’s pleading or other filed documents constitutes an admission pursuant to s 87 of the Evidence Act 2008 (Vic) is a question of fact in the circumstances.
Further, a defendant’s defence must be weighed in light of their failure to lead any evidence at trial. As the High Court of Australia recognised in Australian Securities and Investments Commission v Hellicar,
[d]isputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken into account in determining whether a party has proved its case to the requisite standard.
In G v H, Brennan and McHugh JJ said,
when a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response.
(citations omitted)
10I understand these principles to mean that:
(a) Subject to (b), any matters necessary for the plaintiff to establish in order to make out its pleaded claims must be proved by evidence;
(b) Any admissions made in a defence filed by the defendant’s authorised legal representative may be applied to relieve the plaintiff from proving the matter admitted; and
(c) The failure of a defendant to appear at trial and lead evidence in support of any matters positively alleged by the defendant such that it carries the onus of proving them, will mean that, in the ordinary course, the defendant will fail in respect of that matter. This means that in the ordinary course, such matters may be put to one side.
Plaintiff’s witnesses
11The Plaintiff called the following witnesses to prove its case:
(a) Kaitlin Henrickson who was employed by the Plaintiff as an Activation Director. She explained that the documents referred to by her were the ordinary business records of the Plaintiff maintained through its electronic business recording software systems. She gave evidence that those systems were operating correctly throughout the relevant period and that she would have known had they not been. She gave evidence of having prepared the 3 media booking authorisations that the Plaintiff relied on as proof that the Defendant authorised it to place the advertising spending that it relies on. She explained the meaning of various terms within those documents. She said that these authorisations were a method by which the client authorised the Plaintiff to spend a certain amount on the advertising services provided by the Plaintiff in a certain period. She gave evidence of those authorisations having been signed by the Defendant’s manager, Mr Barbar, through the Plaintiff’s SkyNet software, which is similar to DocuSign. She explained that the invoices were prepared through the Plaintiff’s finance software which then generated the invoices sued upon. She says that the work that was the subject of invoices was in fact done by the Plaintiff.
(b) Danilo Valerio who was employed as the Plaintiff’s Finance Director. He gave evidence of the Defendant’s non-payment of the invoices.
Factual Background
12The following facts were proved by the documents admitted into evidence or from the oral evidence advanced.
13On 18 June 2023, the Plaintiff and the Defendant executed a Media Services Agreement. The Agreement was dated 26 May 2023. Pursuant to the Agreement the Plaintiff was to provide media services to the Defendant for a fee. Those services included advising the Defendant as to media strategies, purchasing and placing advertising and space for the Defendant to comply with schedules approved by the Defendant (cl.23(a)) and to enter into contracts with media vendors for advertising consistent with the schedules approved by the Defendant (cl.2.3(b)).
14Under the Agreement the Defendant was obliged to pay correctly rendered invoices within 30 days of issue (cl.8.4).
15The Agreement also contained detailed provisions around the parties’ ability to terminate the Agreement and the consequences of doing so – I do not have to deal with these provisions as the claim is essentially one for work done under the Agreement and non-payment of invoices rendered.
16Shortly thereafter, the Defendant, through its manager, Mr Edward Barbar, executed a series of Media Booking Authorisations under the Agreement. The first, on 21 June 2023, was for media services with a total cost to client of $88,396.77 (inclusive of GST). A second authorisation, signed on 24 July 2023, was in the amount of $162,679.77 (inclusive of GST). A third, signed on 1 September 2023, was in the amount of $274,104.27 (inclusive of GST).
17Between August and October 2023, the Plaintiff performed work pursuant to those authorisations and issued four invoices to the Defendant for services rendered pursuant to the Agreement:
(a) Invoice No. 1648953 dated 4 August 2023 in the amount of $45,931.23;
(b) Invoice No. 46759 dated 18 August 2023 in the amount of $1,725.39;
(c) Invoice No. 1658982 dated 12 September 2023 in the amount of $48,553.79; and
(d) Invoice No. 1669270 dated 13 October 2023 in the amount of $41,442.87.
18On 3 October 2023, Mr Benton Goodbrand of the Plaintiff sent an email to Mr Barbar noting that another agency, Overdose, appeared to have assumed control of the Defendant’s advertising accounts, and that Resolution Media Network understood its services were being terminated. In that correspondence, the Plaintiff indicated that once finances were transferred, it would cease all activity and had taken notice of the termination of the Agreement.
19On 17 January 2024, Mitry Lawyers, acting on behalf of the Defendant, wrote to Ms Anna Truong of Omnicom Media Group, the Plaintiff’s parent company, refusing to pay the outstanding invoices. That letter was met with a response from Omnicom’s General Counsel, Mr Daniel Caruso, on 30 January 2024.
20Further correspondence ensued. On 22 May 2024, DHH Lawyers, acting for the Plaintiff, issued a Notice to Remedy to Mitry Lawyers. The Defendant did not remedy the alleged defaults. On 1 July 2024, the Plaintiff gave formal Notice of Termination.
21On 8 July 2024, the Plaintiff commenced these proceedings in the Commercial Division of the County Court of Victoria seeking recovery of the outstanding sums.
Statement of Issues
22The only issue that arises is whether the Defendant is liable in debt to the Plaintiff with respect to the following invoices:
(a) Invoice #1648953 dated 4 August 2023 in the sum of $45,931.23;
(b) Invoice #1658982 dated 12 September 2023 in the sum of $48,553.79;
(c) Invoice #1669270 dated 13 October 2023 in the sum of $41,442.87; and
(d) Invoice #46759 dated 18 August 2023 in the sum of $1,725.39
Resolution of Issues
23Based on the evidence before me I am satisfied that:
(a) The parties entered into the Agreement;
(b) 3 Media Booking Authorisations pursuant to the Agreement were prepared by the Plaintiff and sent to the Defendant;
(c) The Defendant by Mr Barbar signed and returned each of those authorisations;
(d) The Plaintiff proceeded to act in accordance with those authorisations and placed bookings and advertising for the advertising concerned;
(e) The Plaintiff rendered to the Defendant 4 invoices as set out in paragraph 17 above; and
(f) More than 30 days has elapsed since those invoices were rendered and those invoices remain unpaid.
24Under those circumstances I find that the Defendant is indebted to the Plaintiff in the sum claimed.
25I am also satisfied that the Plaintiff is entitled to statutory interest in the sum of $17,739.85.
Conclusion & Orders
26There will therefore be judgment for the Plaintiff in the sum of $137,653.28 on the claim with $17,739.85 for statutory interest.
27The Defendant will also be ordered to pay the Plaintiff’s costs of and incidental to the proceeding on the standard basis.
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Certificate
I certify that these 10 pages are a true copy of the judgment of His Honour Judge Wise delivered on 4 September 2025.
Dated: 9 September 2025
Liam Crough
Associate to His Honour Judge Wise.
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