Woolworths Limited v Wills

[2013] NSWSC 1417

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Woolworths Limited v Wills [2013] NSWSC 1417
Hearing dates:	20 September 2013
Decision date:	20 September 2013
Jurisdiction:	Equity Division
Before:	Lindsay J
Decision:	Default judgment granted
Catchwords:	PRACTICE AND PROCEDURE - Default judgment - Whether Plaintiff entitled to a debt or liquidated claim - Uniform Civil Procedure Rules 2005 (NSW), rule 16.6(1)
Legislation Cited:	Uniform Civil Procedure Rules 2005 NSW, r 16.2, 16.3,16.6, 16.6(1), 36.16(2)(b) Civil Procedure Act (2005) NSW, s 100
Cases Cited:	Reading v Attorney General [1951] AC 507 Arnold v Forsythe (2012) NSWCA 18 at [45], Alexander v Ajax Insurance Co Limited [1956] VLR 436 at 445.
Texts Cited:	RP Meagher, JD Hayden and MJ Leeming, Equity: Doctrines and Remedies (4th ed, 2002) para [5-200]
Category:	Principal judgment
Parties:	Woolworths Limited (Plaintiff) David Michael Wills (Defendant)
Representation:	Counsel: B Nield (Plaintiff) Solicitors: Clayton Utz & Company (Plaintiff)
File Number(s):	2007/00253680

Judgment - EX TEMPORE

1. Before the Court is a notice of motion filed on 16 August 2013 seeking default judgment on a statement of claim (insofar as it incorporates a claim for a debt or liquidated claim) filed on 13 February 2007.

1. Delay in the conduct of the proceedings since the date of filing of the statement of claim can be explained by the fact that the defendant was involved in criminal proceedings arising from facts in common with those alleged in the statement of claim. Those proceedings resulted in a conviction recorded against the defendant on or about 7 September 2012.

1. There is evidence that the notice of motion has been served on the defendant by service at the correctional centre at which he is presently an inmate. That evidence is contained in an affidavit of Mr J Khoury sworn 21 August 2013.

1. The defendant at one time appeared in these proceedings by solicitors; but a notice of ceasing to act was filed before the notice of motion presently before the Court was filed.

1. I am satisfied that the defendant has notice of the proceedings and of the plaintiff's motion for default judgment.

1. In all the circumstances I am satisfied, also, that it is appropriate to proceed today to hear the motion notwithstanding the absence of the defendant or any representation on his behalf.

1. The notice of motion is supported by two affidavits sworn by a solicitor (Mr AG Moore): the first sworn on 15 August 2013, the second sworn on 19 September 2013.

1. The rules of court governing the determination of the motion are rules 16.2, 16.3 and 16.6 of the Uniform Civil Procedure Rules 2005 NSW.

1. The motion relies squarely on s 16.6 (1) because the moneys claimed by the plaintiff via the motion are said to constitute "a debt or liquidated claim" within the meaning of that rule.

1. The moneys claimed relate to secret commissions alleged to have been taken by the defendant during the course of his employment with the plaintiff.

1. The plaintiff seeks to recover secret commissions from the defendant on a cause of action in the character of a common money count: namely, on a claim for moneys had and received.

1. There is authority for characterisation of such a claim to relief as one relating to "a debt or liquidated claim". Reading v Attorney General [1951] AC 507establishes that where an agent makes a "secret profit" or "illicit commission" an action for money had and received lies: RP Meagher, JD Hayden and MJ Leeming (eds), Equity: Doctrines and Remedies (4th ed, 2002) para [5-200].

1. It follows from that characterisation of the plaintiff's claim that it falls within the scope of the words "a debt or liquidated claim" in UCPR rule 16.6 (1): Arnold v Forsythe [2012] NSWCA 18 at [45], citing Alexander v Ajax Insurance Co Limited [1956] VLR 436 at 445.

1. The principal amount of the plaintiff's claim as deposed to by Mr Moore is $3,735,963.26.

1. As it is entitled to do, the plaintiff seeks an award of interest on that amount under the Civil Procedure Act (2005) NSW, s 100, together with costs as contemplated by UCPR rule 16.6 (1).

1. The total amount of the judgment sought on the plaintiff's motion, including interest and costs, is $9,072,629.63.

1. I order that judgment be entered for the plaintiff, on its motion, in that sum. With the consent of the plaintiff, I also order that so much of the statement of claim as does not relate to a debt or liquidated claim be dismissed. The effect of these orders is that the proceedings may be taken to have come to an end with entry of judgment in the sum of $9,072,629.33 in favour of the plaintiff.

1. Before concluding, I note that, for what it is worth, the defendant retains such, if any, entitlement he may have to make an application under UCPR rule 36.16(2)(b) for an order that the judgment today entered be set aside or varied. I mention this because, if an application were to be made to set aside the judgment, authority suggests that it would be incumbent on the defendant to support his application with evidence demonstrating the existence of an arguable defence and an explanation, not only for his present absence, but for any delay in his making of the application.

**********

Amendments

26 September 2013 - Substitution of date of 7 September 2012

Amended paragraphs: 2.

Decision last updated: 26 September 2013