Supreme Court New South Wales Medium Neutral Citation: Maureen Courtney and Brett Courtney as trustee for the Courtney Superannuation Fund v Super Smart Strategies Pty Limited [2017] NSWSC 242 Hearing dates: 9 March 2017 Date of orders: 09 March 2017 Decision date: 09 March 2017 Jurisdiction: Common Law Before: Campbell J Decision: 1. Judgment for the plaintiffs against the defendants for damages to be assessed and for costs (to be assessed). 2. Grant liberty to the plaintiffs to approach the Registrar forthwith for the allocation of the earliest available hearing date for an assessment under r 30.1, UCPR 2005 (NSW). 3. The costs ordered include the plaintiffs' costs of and incidental to this motion. Catchwords: CIVIL PROCEDURE – default judgment – defendant in default on loan – claim for unliquidated damages – judgment for the plaintiff under r 16.7 Uniform Civil Procedure Rules 2005 (NSW) Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Floth Pty Ltd v Ana Marie Gabila Bulseco [2015] NSWSC 2076 Category: Procedural and other rulings Parties: Maureen Courtney and Brent Courtney as trustee for the Courtney Superannuation Fund (Plaintiff) Super Smart Strategies Pty Ltd(Defendant) Representation: Counsel: C. Carroll (Plaintiff) No appearance (Defendant) Solicitors: Holman Webb Lawyers (Plaintiff) File Number(s): 2016/00264867 ex tempore judgment - revised 1. The plaintiffs in these proceedings are seeking default judgment. The Rules invoked in the alternative are r 16.10 and r 16.7 of the Uniform Civil Procedure Rules 2005 (NSW). Rule 16.3, which deals with default judgments on a liquidated claim, is not applicable. 2. Mr Carroll of counsel who appears for the plaintiffs, prefers r 16.10. It is necessary to set out very briefly the averments in the claim. 3. The defendants are the plaintiffs' licensed financial adviser, its controlling mind, and another associated company controlled by that same individual. Acting upon the advice of the financial adviser, the plaintiffs lent a sum of $1 million to a third party. Some interest was paid for a period but the borrower has defaulted on the loan. This is putting it very simply indeed because the pleading is appropriately elaborate in setting out the material facts which are more complex than I am indicating. 4. In pressing r 16.10, Mr Carroll relies upon obiter dictum in a judgment of Brereton J in Floth Pty Ltd v Ana Marie Gabila Bulseco [2015] NSWSC 2076. Rule 16.10 is in the following terms: "Whatever the plaintiff's claims for relief against a defendant in default, the court may, on application by the plaintiff, give such judgment against the defendant as the plaintiff appears to be entitled to on his or her statement of claim." In dealing with the plaintiff's claim for relief in Floth at [11] Brereton J said: "UCPR, r 16.10, provides that whatever the plaintiff's claims for relief against the defendant in default, the Court may, on application by the plaintiff, give such judgment against the defendant as the plaintiff appears to be entitled to on his or her statement of claim. The plaintiff appears to be entitled on his or her statement of claim to judgment for $1,635,681 for money had and received, and I would be prepared to give default judgment for that sum. However, the plaintiff has adduced evidence that its claim vastly exceeds that amount and by, its present notice of motion, seeks judgment for a sum (inclusive of interest) in excess of $7 million". 1. Mr Carroll informs me that amongst many claims advanced on behalf of the plaintiff in that case was an express pleading of a common money count and such pleading is absent in this case. His argument, however, is that the language of the Rules is sufficiently broad to enable me, by reference to the pleadings, to make an assessment of the quantum of the plaintiffs' claim and enter judgment in that amount. 2. Perhaps only because of the heading to r 16.10, I have the impression that it was intended to do the same work as r 36.1 in cases of final relief. I interpolate that that may not have been Brereton J's view, if indeed the initiating process in Floth included a common money count, even in the alternative. 3. Having said that, given the absence of such a count in the present case, I am not of the view that Brereton J's obiter expression of opinion is applicable in the present case. It seems to me, given that the plaintiffs' claim articulated in its various forms is for unliquidated damages, that the applicable rule is r 16.7, which empowers me to give judgment against the defendant for damages to be assessed and for costs. 4. Mr Carroll has drawn to my attention the provisions of r 16.7(2) concerning the nature of the evidence required to support a default judgment under the Rules. I am satisfied, having carefully considered the affidavits of his instructing solicitor, Ms Cari-Dee Lee, affirmed 13 January 2017 and 9 March 2017 (two for this date), that the requirements of r 16.7(2) have been satisfied. 5. It is abundantly clear that the defendants are in default. The defendants were formerly represented by solicitors who ceased to act in or about November 2016. For a brief period following that cessation, the second defendant continued to conduct the litigation on behalf of the corporate entities and himself as a self-represented litigant. However, since about December 2016 the lines of communication have gone dead and he has failed to respond to any of the communications forwarded by Ms Lee from time to time. 6. I am satisfied that the motion seeking default judgment was duly served in accordance with the Rules and that the defendants have had a fair opportunity of appearing today to resist this relief. 7. I am satisfied that the matter has not settled, and I am satisfied that the affidavit properly sets out the matters referred to in r 16.7(2), although in that regard Mr Carroll is not seeking an order for fixed sum costs today. I interpolate that the Rule does not expressly state that that is the purpose of para (c) but it is hard to envisage any other utility. 8. I am satisfied that the affidavit evidence shows that the originating process was duly served on 6 September 2016 on the solicitors then acting, Messrs Hughes Yates Beaggi Lawyers, who, I infer, had authority to accept service on behalf of their client. 9. Moreover, were it otherwise, there is no doubt that by his acting on his own behalf following the termination of his solicitors' retainer, Mr Manietta, the second defendant, was well and truly seized of knowledge of the proceedings in all of their detail. 10. In the circumstances, I am satisfied that I should make orders in the following terms: 1. Judgment for the plaintiffs against the defendants for damages to be assessed and for costs (to be assessed). 2. Grant liberty to the plaintiffs to approach the Registrar forthwith for the allocation of the earliest available hearing date for an assessment under r 30.1, UCPR 2005 (NSW). 3. The costs ordered include the plaintiffs' costs of and incidental to this motion. ********** 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: 15 March 2017