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Yang v Finder Earth Pty Ltd

Yang v Finder Earth Pty Ltd

Case [2019] VSCA 22 15 February 2019

Admissibility of Evidence

Res Judicata

Civil Litigation & Procedure

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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 with Mr J A Nixon	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]
[1]Supreme Court (General Civil Procedure) Rules 2015; County Court Civil Procedure Rules 2008.
[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]
[5] Finder Earth Pty Ltd…

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.

Continue reading Yang v Finder Earth Pty Ltd

Details

AGLC: Yang v Finder Earth Pty Ltd [2019] VSCA 22
Case: [2019] VSCA 22
Decision Date: 15 February 2019

CaseChat Overview and Summary

In Yang v Finder Earth Pty Ltd, the respondent, Yang, sought entry of judgment against the appellant, Finder Earth, following the striking out of their defence. The case was heard in the County Court of Victoria. The respondent’s application for entry of judgment in default of defence was granted, resulting in an order for Yang to be paid $130,500 by Finder Earth. Finder Earth appealed this decision, arguing that the judgment was irregularly entered and improperly characterised.

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