Supreme Court New South Wales Medium Neutral Citation: Toyota Finance Australia Limited v Antonia Suntsova & Ors [2025] NSWSC 94 Hearing dates: 21 February 2025 Date of orders: 21 February 2025 Decision date: 21 February 2025 Jurisdiction: Equity - Applications List Before: Brereton J Decision: See Orders Catchwords: CIVIL PROCEDURE – default judgment – where the Plaintiff brings a claim against the Second Defendant for restitution – whether Part 16 of the Uniform Civil Procedure Rules 2005 (NSW) can be applied by analogy. COSTS – party/party – costs orders in interlocutory proceedings – where the Fifth Defendant filed a notice of motion but took no steps to progress - whether the motion should be dismissed with costs. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) 416 Civil Procedure Act 2005 (NSW) Cases Cited: Albanis v Eleftheriou [2014] NSWSC 416 Sinopec International Australia Pty Ltd v Wenwu Su [2019] NSWSC 269 Wily v King [2010] NSWSC 352 Category: Procedural rulings Parties: Toyota Finance Australia Limited (First Plaintiff) Antonia Suntsova (First Defendant) Representation: Counsel: C Clarke (Plaintiff) No other appearances Solicitors: Wotton Kearney (Plaintiff) No other appearances File Number(s): 2023/336174 Publication restriction: n/a ex tempore JUDGMENT (REVISED FROM TRANSCRIPT) 1. By Notice of Motion dated 19 November 2024 the Plaintiff seeks default judgment against the Second Defendant. 2. There was no appearance on this application by the Second Defendant. 3. The proceedings were commenced by Summons dated 23 October 2023. A Statement of Claim was filed on 23 July 2024. On 14 August 2024 the Court gave directions requiring the Defendants to file and serve defences to the Statement of Claim by 11 October 2024. No defence has been filed by the Second Defendant. Nor has a notice of appearance been filed for the Second Defendant. 4. In very broad terms, by the Statement of Claim the Plaintiff alleges that it was the victim of a serious fraud perpetrated by the First Defendant. It is alleged that the First Defendant was employed by McCarroll's of Moss Vale and that she engaged in a practice by which applications were made for business vehicle loans on behalf of customers which, if approved, would result in the Plaintiff providing a loan to the customer for the purchase of the nominated vehicle. Representations were allegedly made to the Plaintiff that McCarroll's was in possession of relevant motor vehicles and was able to grant a security interest to the Plaintiff when in fact McCarroll's was not in possession of the relevant motor vehicles, did not own any of the relevant motor vehicles and McCarroll's could not pass any title to the relevant motor vehicles to the Plaintiff. 5. During the first half of 2023, the Plaintiff paid well in excess of $3 million to McCarroll's pursuant to these allegedly fraudulent applications. It is alleged that immediately after those funds were transferred from the Plaintiff to McCarroll's the First Defendant transferred funds from McCarroll's bank account to the Second Defendant's bank account. It is alleged that the amount of $3,260,798 was transferred to the Second Defendant in this way. 6. The Plaintiff by the Statement of Claim brings a claim against the Second Defendant for restitution, the Second Defendant allegedly having been unjustly enriched at the expense of the Plaintiff. The Plaintiff seeks judgment in the sum of $3,260,798, being the amount that was allegedly paid into the Second Defendant's bank account at the direction of the First Defendant. 7. Part 16 of the Uniform Civil Procedure Rules concerns default judgment. It only applies to proceedings commenced by Statement of Claim. These proceedings were commenced by Summons and accordingly Part 16 does not apply. However, the Court has power under s 61(3)(g) of the Civil Procedure Act 2005 NSW to give such order as it considers appropriate. That section gives the Court power to give judgment in circumstances of default: see Sinopec International Australia Pty Ltd v Wenwu Su [2019] NSWSC 269 per Hammerschlag J at [38] to [40]. The Plaintiff asks me to apply Part 16 by analogy, noting that this was particularly appropriate in circumstances where, although commenced by Summons, a Statement of Claim was filed. I am satisfied that it is appropriate for the Court to apply Part 16 by analogy in this case. 8. The Plaintiff relies on the following affidavits: (a) an affidavit of service made by Mr Murray Juchau sworn on 25 October 2023; (b) an affidavit of service of Ms Malvina Farrar sworn 31 July 2024; (c) an affidavit of Mr David French affirmed on 20 February 2025; and (d) an affidavit of Mr Gavin Robert Davies affirmed 20 February 2025. 1. I am satisfied that together, these affidavits address the matters identified in r 16.6(2). In particular: (a) Mr French gives evidence that the amount due to the Plaintiff in respect of the cause of action in which the proceedings were commenced, at the time of the originating process was filed, was $3,260,798; (b) Mr French also gives evidence that no payments have been received nor credits accrued to reduce the amount of the claim; (c) Mr French identifies the source of this knowledge of the matters stated in his affidavit concerning the debt; (d) Mr French states that the amount claimed by way of interest, which is the amount of $358,803.92 in accordance with the rate prescribed by UCPR r 6.12(8); (e) Mr French states that costs are claimed and that the amount claimed is $1,596. He notes that the Plaintiff does not claim filing fees or service fees. (f) Mr Davies gives evidence about how and when the originating process was served on the Defendant. His evidence is that the Summons was served on the Second Defendant on 25 October 2023 and that the source of his knowledge is the affidavit of service of Mr Juchau filed 25 October 2023. He also gives evidence that the Statement of Claim was served on the Second Defendant by post on 29 January 2024. He records that the source of his knowledge in this respect is the affidavit of Ms Farrar dated 31 July 2024. 1. I am satisfied that the Plaintiff's claim is a claim for debt or liquidated claim; see Albanis v Eleftheriou [2014] NSWSC 416 at [27] to [28] per Beech-Jones J. 2. If the matter had run to trial some interesting questions may have arisen about the interplay of equitable principles and the application of common law principles associated with the law of restitution, however, it is unnecessary for me to consider those matters for present purposes. The fact is that the Plaintiff makes a claim in restitution and it is properly described as a claim "debt or liquidated claim". 3. The Second Defendant has never disputed the receipt of the $3,260,798. Its failure to file a defence may be taken as an acceptance of the allegations; see Wily v King [2010] NSWSC 352 at [16] per Barrett J. 4. I am satisfied that this is a matter where default judgment is appropriate. 5. The Plaintiff also seeks an order dismissing a Notice of Motion dated 1 August 2024 filed by the Fifth Defendant. By that Notice of Motion the Fifth Defendant sought orders varying a penal notice that was addressed to the Fifth Defendant. The Fifth Defendant has taken no steps to progress that Notice of Motion. The Fifth Defendant was on notice that the Plaintiff would seek orders dismissing the Notice of Motion with costs when the matter came before me this morning. The Fifth Defendant did not appear at the hearing this morning. 6. There is no evidence of any intention on the part of the Fifth Defendant to prosecute its Notice of Motion. 7. It is appropriate that it be dismissed with costs. 8. I make the following orders: 1. Judgment for the Plaintiff against the Second Defendant for $3,260,798. 2. The Second Defendant to pay interest claimed at a prescribed rate under UCPR 6.12(8) in the amount of $358,803.92. 3. The Second Defendant to pay the Plaintiff's costs fixed in the amount of $1,596. 4. The Fifth Defendant's Notice of Motion dated 1 August 2024 be dismissed with costs. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2025