SK Developments (Aust) Pty Ltd v Vansan Construction (Aust) Pty Ltd (No 2) - [2025] VSC 524

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2025 01664

IN THE MATTER of VANSAN CONSTRUCTION (AUST) PTY LTD (ACN 104 943 732)

BETWEEN:

SK DEVELOPMENTS (AUST) PTYLTD (ACN 602 503 097) & ANOR (according to the attached Schedule)	Plaintiffs
and
VANSAN CONSTRUCTION (AUST) PTY LTD (ACN 104 943 732) & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Matthews J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2025
DATE OF RULING:	28 August 2025
CASE MAY BE CITED AS:	SK Developments (Aust) Pty Ltd v Vansan Construction (Aust) Pty Ltd & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 524

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PRACTICE AND PROCEDURE — Proceeding commenced by originating motion — Judgment in default of appearance obtained without notice to defendants — Application to set aside default judgment — Default judgment set aside as it is irregular — Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 5.03(1), 45.03, 45.05, 46.08.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr A Trichardt	HWL Ebsworth
For the Second to Fifth Defendants	Mr S Prendergast	Ryan Solicitors

Contents

A.. Introduction and background

A.1 Overview
A.2 The orders made on 27 June 2025

B.. Relevant law

C.. The Defendants’ submissions

D.. The first plaintiff’s submissions

D.1         The Set Aside Application is effectively an appeal of the Default Order
D.2         The Default Order is not irregular
D.3         If the Default Order is irregular, it should still not be set aside

E... Consideration

E.1          The Set Aside Application is competent and able to be heard by me
E.2          The Default Order was irregularly made
E.3          The Default Order should be set aside

F... Conclusion

HER HONOUR:

A Introduction and background

A.1 Overview

These reasons concern an application by the second to fifth defendants for the orders made against them on 27 June 2025 to be set aside (Set Aside Application).
The Set Aside Application is made by summons issued on 22 July 2025. At the time it was filed, it was issued on behalf of all of the defendants. By the time it came to be heard by me on 13 August 2025, the first defendant had been wound up in insolvency by the Court in unrelated proceedings,[1] hence the Set Aside Application was made by the second to fifth defendants only. They submitted, however, that if the Set Aside Application is granted, then it should also be granted in favour of the first defendant.
[1]The first defendant, Vansan Construction (Aust) Pty Ltd, was wound up in insolvency by the Court on 6 August 2025.
The second to fifth defendants (hereafter, referred to as the Defendants, for convenience) rely on the following materials in support of the Set Aside Application:
(a)the affidavit of Vincent Ryan sworn 22 July 2025 (Ryan Affidavit). Mr Ryan is the solicitor for the Defendants;
(b)the affidavit of the fourth defendant affirmed 10 July 2025 (Sutharsan Affidavit). I note that although the document is dated…

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.

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Details

Case: [2025] VSC 524
Decision Date: 28 August 2025

CaseChat Overview and Summary

SK Developments (Aust) Pty Ltd, the plaintiff, filed a claim against Vansan Construction (Aust) Pty Ltd, the defendant, seeking relief in the Supreme Court of Victoria. The nature of the dispute involved contractual obligations and potential breaches arising from a construction project. The plaintiff initiated the proceeding by filing an originating motion and subsequently obtained a judgment in default of appearance without notifying the defendants. The defendants then filed an application to set aside the default judgment.

The primary legal issue before the court was whether the default judgment should be set aside. The court considered whether the plaintiff's failure to provide notice to the defendants complied with the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Additionally, the court examined whether the default judgment was irregular under the rules and whether setting it aside would be in the interests of justice.

In its decision, the court found that the plaintiff had not adhered to the procedural requirements under the rules when obtaining the default judgment. Specifically, the court noted that the plaintiff did not comply with rule 5.03(1) which mandates service of the originating motion and supporting affidavit on the defendant. The court concluded that the default judgment was irregular and, as such, should be set aside under rule 45.03. The court also considered the broader implications of the irregularity and concluded that setting aside the judgment was in the interests of justice, as per rule 45.05 and 46.08.

The court set aside the default judgment and ordered that the proceedings be listed for further hearing. This decision highlights the importance of strict compliance with procedural rules when obtaining a default judgment and underscores the court's willingness to set aside such judgments if they are found to be irregular.

Orders