Stamford Capital Funds Management Pty Ltd v Tsihlis

[2025] NSWSC 974

Supreme Court

New South Wales

Medium Neutral Citation:

Stamford Capital Funds Management Pty Ltd v Tsihlis [2025] NSWSC 974

Hearing dates:

On the papers

Date of orders:

29 August 2025

Decision date:

29 August 2025

Jurisdiction:

Equity - Commercial List

Before:

Peden J

Decision:

See [23]

Catchwords:

CIVIL PROCEDURE – Default judgment – Default in entering appearance and filing Commercial List Response – Application of pt 16 of Uniform Civil Procedure Rules 2005 (NSW) by analogy to proceedings commenced by Summons and Commercial List Statement – Default judgment awarded – No issue of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Legal Profession Uniform Law Application Regulation 2015 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Arnold v Forsythe [2012] NSWCA 18

Cashflow Finance Australia Pty Ltd v Bennett [2024] NSWSC 632

Pieman Resources Pty Ltd v Monks [2025] FCA 88

Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180

Re Bleecker Property Group Pty Ltd (in liq) [2023] NSWSC 1071

Rhodium Trading Australia Pty Ltd (in liq) (recs and mgrs apptd) v Leading Edge Commercial FZE [2025] NSWSC 827

Sinopec International (Australia) Pty Ltd v Su [2019] NSWSC 269

Toyota Finance Australia Ltd v Suntsova [2025] NSWSC 94

Wily v King [2010] NSWSC 352

Category:

Procedural rulings

Parties:

Stamford Capital Funds Management Pty Ltd as trustee for the SCIM 80 Unit Trust (Plaintiff)
Kyriakos Tsihlis (Defendant) (no appearance)

Representation:

Counsel:
J Rodgers (Plaintiff)

Solicitors:
Thomson Geer (Plaintiff)

File Number(s):

2025/00261303

Publication restriction:

Nil

JUDGMENT

1. By a Notice of Motion filed in Court on 22 August 2025, the plaintiff, Stamford Capital Funds Management Pty Ltd in its capacity as trustee for the SCIM 80 Unit Trust (Stamford Capital), seeks default judgment on its claim against the defendant, Mr Kyriakos Tsihlis, in the combined sum of $4,381,366.95.

2. The combined sum sought by Stamford Capital is comprised of: a principal sum of $4,227,031.05; interest between 3 July and 22 August 2025, quantified at $148,805.15; and costs of $5,530.75.

3. In the underlying proceedings, Stamford Capital seeks to recover these sums from Mr Tsihlis, pursuant to two personal guarantees he granted to secure advances from Stamford Capital to Copy Management Systems Pty Ltd (CMS). Pursuant to cl 2.1 of each Deed of Guarantee and Indemnity, Mr Tsihlis, along with a co-surety, covenanted to guarantee payment to Stamford Capital “of the Guaranteed Moneys”. The “Guaranteed Moneys” the subject of the Deeds were defined in cl 1.1 thereof in the following terms:

“Guaranteed Moneys”   all debts and monetary liabilities of the Guarantor, Obligors and any Third Party Obligors to the Lender at any time and in any capacity, irrespective of whether the debts or liabilities:

(a) are present or future;

(b) are actual, prospective, contingent or otherwise;

(c) are at any time ascertained or unascertained;

…

(g) are owed or incurred as principal, interest, fees, charges, Taxes, damages (whether for breach of contract or tort or incurred on any other ground), losses, costs or expenses, or on any other account;

…

(j) comprise any combination of the above.

4. In total, some $14,970,000 was advanced by Stamford Capital to CMS. There does not appear to be any dispute that CMS has defaulted on its obligations under its Facility Agreement with Stamford Capital, such that, at first glance, the latter is entitled to call on Mr Tsihlis to honour his guarantees pursuant to cl 2.2.1 of the Deeds of Guarantee and Indemnity.

5. Following CMS’ default, Stamford Capital and Mr Tsihlis, on 1 September 2023, entered into a Deed of Forbearance, pursuant to the terms of which Mr Tsihlis acknowledged the validity of the guarantees and covenanted to pay the “Money Owing” thereunder as defined by cl 1.1. As recorded in cl 2.1(a) of the Deed of Forbearance, the “Money Owing” by Mr Tsihlis and his co-surety was $13,791,366.42, upon which “interest, fees and costs continue[d] to accrue”.

6. On 23 May 2025, Stamford Capital’s solicitors issued a letter of demand to Mr Tsihlis, requesting payment of “Guaranteed Moneys” in the sum of $4,103,514.30. That sum was described as “Total Interest to 22 May 2025”, presumably on the principal sum advanced to CMS and acknowledged by Mr Tsihlis in the Deed of Forbearance. On the evidence before the Court, Mr Tsihlis has not complied with that request.

7. When the matter came before me in the Commercial List on 18 July 2025, I directed Mr Tsihlis, who had not, and still has not, entered an appearance in the proceedings, to file any Commercial List Response by 15 August 2025. As may be obvious, that has not occurred.

8. For the reasons that follow, I consider it appropriate to enter default judgment against Mr Tsihlis.

Default judgment applications by analogy to pt 16 of the Uniform Civil Procedure Rules 2005 (NSW)

9. In the ordinary course, applications for default judgment are governed by pt 16 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). As stipulated by r 16.1 of the UCPR, however, the provisions of pt 16 strictly apply only “to proceedings commenced by statement of claim”. Tritely, these proceedings were not commenced by the filing of pleadings: rather, they were commenced by the filing of a Summons and Commercial List Statement.

10. In Sinopec International (Australia) Pty Ltd v Su [2019] NSWSC 269 at [38]-[40], however, Hammerschlag J, relying on s 61(3)(g) of the Civil Procedure Act 2005 (NSW), relevantly observed that:

The Court undoubtedly nevertheless has power to enter judgment for the plaintiff in light of the defendant’s failure to file its Commercial List Response.

…

[Section 61] clearly gives the Court power to give judgment to the plaintiff in the current circumstances. To the extent it is necessary (and I do not think that it is) to order that judgment may be entered, notwithstanding that the proceedings were commenced by summons, I so order.

11. Similar observations have been made other judges sitting in this Division’s Commercial List and Corporations List: see, eg, Re Bleecker Property Group Pty Ltd (in liq) [2023] NSWSC 1071 at [12] (Williams J); Cashflow Finance Australia Pty Ltd v Bennett [2024] NSWSC 632 at [46] (McGrath J); Toyota Finance Australia Ltd v Suntsova [2025] NSWSC 94 at [7] (Brereton J).

12. Accordingly, in the Commercial List, so long as an applicant for default judgment, on a liquidated claim such as the present, adheres to the requirements enumerated in rr 16.3 and 16.6 of the UCPR, then the Court may enter default judgment: see generally Rhodium Trading Australia Pty Ltd (in liq) (recs and mgrs apptd) v Leading Edge Commercial FZE [2025] NSWSC 827 at [4].

Should default judgment be entered against Mr Tsihlis on the guarantees?

13. By analogy to r 16.2(1)(a) of the UCPR, it is clear that Mr Tsihlis’ failure promptly to file his Commercial List Response places him in “default” for the purposes of the present application: Sinopec at [38].

14. It is also clear that, by analogy to r 16.3(2)(a)-(b) of the UCPR, Stamford Capital has properly filed two affidavits of service of the Summons and Commercial List Statement upon Mr Tsihlis and one affidavit in support of its application. That affidavit in support of the application, further, complies with the requirements set out in r 16.6(2) of the UCPR.

15. First, for the purposes of r 16.6(2)(a) and (d) of the UCPR, the affidavit of Daniel Pirrello, affirmed on 21 August 2025, states:

1. the principal amount due under the guarantees, being $4,227,031.05, in light of CMS’ default and Mr Tsihlis’ obligation to attend to payment of the “Guaranteed Moneys” to Stamford Capital; and

2. the interest due on that principal amount, calculated in accordance with cl 5.2 of the Facility Agreement between Stamford Capital and CMS, which provided that interest on the loan would accrue at the “Default Rate” (initially being an aggregate of 7% per annum and 8% per annum, as varied from time to time), at $148,805.15. In the event that contractual interest is not awarded, Mr Pirrello’s affidavit also calculates interest under s 100(1) of the CPA as standing at $46,364.16. There is no reason apparent not to award Stamford Capital interest at the contractual rate identified.

16. Secondly, for the purposes of r 16.6(2)(b) of the UCPR, Mr Pirrello deposes that Mr Tsihlis has made no payment of the Guaranteed Moneys from 2 July 2025.

17. Thirdly, for the purposes of r 16.6(2)(c) of the UCPR, Mr Pirrello deposes that his knowledge of Mr Tsihlis’ indebtedness to Stamford Capital arises from his personal review of its books and records. While lacking in some specificity as to what those “books and records” are, Mr Pirrello’s affidavit rises above a mere intimation of familiarity with the matter: cf Arnold v Forsythe [2012] NSWCA 18 at [88] (Sackville AJA, McColl and Young JJA agreeing).

18. Fourthly, for the purposes of r 16.6(2)(e) of the UCPR, Mr Pirrello states that Stamford Capital, in terms of costs incurred, claims:

1. $1,596.00 for its lawyers’ costs of attending to the application, as specified by item 5(a) of pt 1 of sch 1 to the Legal Profession Uniform Law Application Regulation 2015 (NSW); and

2. $3,788.00 for the costs of filing its Summons and Commercial List Statement; and

3. $146.75 for the costs of serving its Summons and Commercial List Statement.

19. Finally, for the purposes of r 16.6(2)(f) of the UCPR, Mr Pirrello makes reference to the affidavit of service of Talysha Sabatino, sworn on 16 July 2025, and to the affidavit of service of Leanne Maree Graham, affirmed on 15 August 2025. Ms Sabatino deposes personally to serving the Summons and Commercial List Statement on Mr Tsihlis; Ms Graham deposes postally to serving upon Mr Tsihlis a copy of this Court’s order that he file any Commercial List Response by 15 August 2025. The order referred to by Ms Graham was sent by express post to Mr Tsihlis on 24 July 2025, at an address in Linley Point, New South Wales.

20. Mr Pirrello further deposes that he is “not aware of any injustice that would arise as a result of entry of default judgment”. Strictly speaking, the relevance of Mr Pirrello’s opinion on potential injustices arising from the entry of default judgment may be questioned. Rather, on an application for default judgment, the question of whether injustice might be raised thereby bears on the exercise of the Court’s discretion: see, eg, Pieman Resources Pty Ltd v Monks [2025] FCA 88 at [44]-[45] (Derrington J), citing Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180 at [43]-[44] (Edmonds, McKerracher and Nicholas JJ). It is an inquiry falling within the province of the Court to conduct: Rhodium at [17]; Wily v King [2010] NSWSC 352 at [17] (Barrett J).

21. On the facts of this case, there is no injustice in granting Stamford Capital’s application. Mr Tsihlis has had sufficient notice of Stamford Capital’s application and has not, on the face of the evidence, in any way sought to participate in these proceedings. Mr Tsihlis is in default of the Court’s direction that he file his Commercial List Response by 15 August 2025. In those circumstances, Mr Tsihlis’ default “should be taken to represent acceptance” of the allegations levied in the Commercial List Statement and “admission of the several allegations in it”: Wily at [16].

22. On the face of the documents adduced by Stamford Capital, it is well-entitled to default judgment against Mr Tsihlis.

Orders

23. For these reasons, I make the following orders:

1. Stamford Capital’s Notice of Motion filed 22 August 2025, seeking default judgment against Mr Tsihlis, is granted.

2. Judgment for Stamford Capital against Mr Tsihlis for $4,227,031.05 in respect of its claim.

3. Judgment for Stamford Capital against Mr Tsihlis for $148,805.15 in respect of interest.

4. Judgment for Stamford Capital against Mr Tsihlis for $5,530.75 in respect of its costs.

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Decision last updated: 29 August 2025