The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd

[2021] NSWSC 1175

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd [2021] NSWSC 1175

Hearing dates:

13 September 2021

Decision date:

13 September 2021

Jurisdiction:

Equity - Technology and Construction List

Before:

Hammerschlag J

Decision:

Judgment for the plaintiff for $18,055,076.20 plus interest and costs

Catchwords:

PRACTICE AND PROCEDURE – application for default judgment where no Commercial List Response filed – no issue of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

The Property Investors Alliance Pty Ltd – Plaintiff
C88 Project Pty Ltd – Defendant

Representation:

Counsel:
J. Lee – Plaintiff
V. Grillakis (solicitor) – Defendant

Solicitors:
Rutland’s Law Firm – Plaintiff
Madison Marcus – Defendant

File Number(s):

2021/22126

Ex tempore JUDGMENT

1. HIS HONOUR:   By Summons and accompanying Commercial List Statement filed on 25 January 2021, the plaintiff claims:

1. a declaration that it has an equitable charge over all strata units in a mixed use development, known as the Somerset, at 7-13 Jenkins Street and 2-10 Thallon Street Carlingford, NSW to secure all moneys owing to it pursuant to a written Sole Agency Agreement entered into with the defendant on or about 20 April 2018, and varied by a number of supplementary agreements;

2. an order for judicial sale;

3. judgment for $18,132,076.20, being estate agent’s commission pursuant to a Second Exclusive Agency Agreement (the agency agreement) entered into on or about 21 May 2015, under which the defendant must pay the plaintiff commission following the exchange of a contract for the sale of a property in the development; and

4. interest at 10% per annum (the agency agreement contains a provision for default interest at this rate – cl 8.10).

2. The Summons and Commercial List Statement were duly served on 11 February 2021, and on the same day, the defendant entered an appearance.

3. On 19 March 2021, I ordered that the defendant was to file its Commercial List Response and any cross-claim by 23 April 2021. It failed to do so.

4. On 30 April 2021, I ordered that the time be extended for the defendant to serve its Commercial List Response to 7 May 2021 and that if it failed to serve its Commercial List Response in accordance with the directions, the plaintiff had leave to make returnable on 14 May 2021 an application for judgment provided it was filed and served by 10 May 2021.

5. A Notice of Motion pursuant to r 16.6 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for judgment against the defendant, plus interest, was filed and served on 10 May 2021 and made returnable on 14 May 2021. There was filed and served together with the Motion an affidavit of the plaintiff’s solicitor, Rutland Cheung affirmed on 10 May 2021.

6. The Motion has been stood over on a number of occasions.

7. The plaintiff now moves on the Motion. It moves for judgment in the lesser amount of $18,055,076.20 made up as is revealed in paragraphs 43, 46, 57 and 59 of the Commercial List Statement. An additional amount of $77,000 was claimed, but is not pressed at this time.

8. The Motion also seeks an order that the balance of the proceedings be listed for hearing.

9. The Motion was listed for hearing on 10 September 2021. The plaintiff sought for it to be dealt with in Chambers, however, the defendant, through its solicitors by email on 9 September 2021, opposed this. I considered that the application should be heard and it was conducted remotely because of the present COVID-19 pandemic.

10. Albeit that the defendant had, in breach of directions, filed no defence, it appeared at the hearing of the Motion through a solicitor, Ms Grillakis. The plaintiff made no objection to the Court hearing her and I heard her. She informed the Court that the parties had reached an advanced stage in settlement negotiations and whilst she was not able to say that there was a binding agreement, she maintained that there was agreement in principle on the major terms but there were subsidiary terms still to be agreed and documentation had not been executed. She was unable to, and did not put, that the proceedings were subject to an accord and satisfaction. She enquired whether the Court would consider ordering the parties to mediation at this point.  The plaintiff did not embrace this suggestion and given that there is no defence the plaintiff is entitled to proceed on the Motion.

11. The plaintiff relies on the affidavit of Mr Cheung earlier referred to, an affidavit of service of Mr Cheung affirmed on 11 February 2021, and an affidavit of Yue (Justin) Wang, the sole director and secretary of the plaintiff, sworn on 28 July 2021.

12. Under UCPR r 16.1, UCPR r 16.6 which provides for default judgment applies to proceedings commenced by Statement of Claim, and accordingly does not strictly apply here because the proceedings were commenced by Summons. The rule, however, can be applied by analogy.

13. The affidavits comply with UCPR r 16.6.

14. In addition, under s 61(3)(d) and (g) of the Civil Procedure Act 2005 (NSW), if a party fails to comply with a direction, the Court may, by order, strike out any defence filed by the party and give judgment accordingly, and may make such other order as it considers appropriate.

15. I am satisfied that the plaintiff has sufficiently established its entitlement to a money judgment in the terms that it seeks. The interest for which the agreement provides is an amount of $4,516.08 per day. The plaintiff claims interest from 1 October 2019.

16. In so far as is necessary, I give leave to the plaintiff to move for default judgment, notwithstanding that the proceedings have been commenced by Summons.

17. I also propose to fix the remainder of the proceedings for hearing.

18. The Court makes the following orders:

1. Judgment in favour of the plaintiff against the defendant for $18,055,076.20.

2. Interest at the rate of 10% per annum from 1 October 2019 up to the date of judgment.

3. The defendant is to pay the plaintiff’s costs of the application.

Notation

His Honour fixed the remainder of the proceedings for hearing on 20 October 2021 and made procedural directions. His Honour also stayed the judgment up to and including 15 September 2021, which course was not opposed by the plaintiff.

Amendments

15 September 2021 - Typographical error in last sentence of para 10

Decision last updated: 15 September 2021