SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0057
| TAO YANG | Applicant |
| v | |
| FINDER EARTH PTY LTD (ACN 607 690 577) | First Respondent |
| and | |
| XIMEI LUO | Second Respondent |
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| JUDGES: | MAXWELL P, TATE and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 January 2019 |
| DATE OF JUDGMENT: | 15 February 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 22 |
| JUDGMENT APPEALED FROM: | [2018] VCC 288 (Judge Woodward) |
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PRACTICE AND PROCEDURE – Entry of judgment – Judgment in default of defence – Self-executing order – Non-compliance – Defence struck out – Entry of judgment in default – Judgment for fixed sum – Whether irregularly entered – Whether claim ‘for recovery of a debt’ – Characterisation of claim – Scrutiny of pleading – Properly characterised as ‘claim for recovery of damages’ – Respondent entitled only to interlocutory judgment – Appeal allowed – County Court Civil Procedure Rules 2008 rr 21.02, 21.03, 21.07.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr D G Collins QC | Nevile & Co |
| For the Respondents | Mr P H Solomon QC with Mr C Lum | Canaan Lawyers |
MAXWELL P
TATE JA
EMERTON JA:
Summary
Under the Civil Procedure Rules, which apply in the Supreme and County Courts,[1] the failure of a defendant to serve a defence within the required time entitles the plaintiff to ‘enter or apply for judgment’. The Rules expressly extend that entitlement to the case like the present, where a defence is struck out by order of the Court.[2]
[2]As this case was commenced in the County Court, the applicable rule is r 21.02 of the County Court Civil Procedure Rules 2008.
Rule 21.03 governs the procedure for the entry of judgment in default. The nature of the judgment which may be entered is expressed to depend on the character of the claim which the plaintiff makes. If the claim is for the recovery of a debt, a plaintiff may enter final judgment ‘for an amount not exceeding the amount claimed’, together with interest.[3] If, on the other hand, the claim is for the recovery of damages, the plaintiff may enter ‘interlocutory judgment … for damages to be assessed’.[4]
[3]Ibid r 21.03(1)(a).
[4]Ibid r 21.03(1)(b).
In the present case, as will appear, the plaintiffs (the respondents to this application) applied to enter judgment following the striking out of the defence under a self-executing order. The judge entered judgment in favour of the second respondent (‘Luo’) against the second defendant, the present applicant (‘Yang’), for the amount of $700,000 together with interest and costs.
His Honour subsequently refused an application by Yang to set aside the default judgment as irregular. He held that the claim as pleaded was properly characterised as a claim ‘for the recovery of a debt’ and not as a claim ‘for the recovery of damages’. Yang now seeks leave to appeal from that decision.[5]
Continue reading Yang v Finder Earth Pty Ltd
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- AGLC
- Yang v Finder Earth Pty Ltd [2019] VSCA 22
- Case
- [2019] VSCA 22
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the County Court erred in characterising the respondent's claim as one for recovery of a debt, which would entitle Yang to a self-executing judgment, rather than as a claim for recovery of damages, which would require a separate interlocutory judgment. Finder Earth contended that the claim was improperly characterised and that the judgment was thus irregularly entered. The court needed to determine the correct characterisation of the claim and whether the procedure followed was compliant with the County Court Civil Procedure Rules 2008.
The court held that the claim was properly characterised as one for recovery of damages, not a debt. Consequently, the County Court was not entitled to enter judgment in default of defence without making an interlocutory order. The court noted that the pleadings and evidence provided did not support a claim for debt recovery. Instead, the respondent's claim was for damages, which required a separate interlocutory judgment. The appeal was allowed, and the order for entry of judgment was set aside.
The final orders included the dismissal of the respondent's application for entry of judgment in default of defence and the setting aside of the judgment entered in default. The case underscored the importance of correctly characterising claims to ensure compliance with procedural rules and to avoid irregular judgments.
Orders
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Background
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