Westall Wholesale Fruit & Vegetables Pty Ltd (In Liquidation) v Mountakis [2021] FCA 130

Westall Wholesale Fruit & Vegetables Pty Ltd (In Liquidation) v Mountakis [2021] FCA 130

Default judgment was appropriate because the respondents had been served with the originating process and the order listing the further case management hearing, did not file a notice of appearance, did not attend the hearing, provided no explanation, and thereby indicated that they did not intend to participate or cooperate; on the face of the statement of claim and the affidavit of Gess Michael Rambaldi sworn 29 October 2020, the applicants were entitled to the relief claimed.

Jurisdiction
Australia
Judgment Date
24 February 2021
Procedural Posture
Application for Default Judgment Pursuant to R 5.23(2)(c) of the Federal Court Rules 2011 (cth) in a Corporations and Corporate Insolvency Proceeding / Determined on the Papers After the Respondents Failed to File a Notice of Appearance and Failed to Attend the Case Management Hearing
Outcome
Application granted; default judgment entered against the respondents.
Legal Topics
['default Judgment' 'voidable Transactions' 'uncommercial Transactions' 'insolvent Transactions' 'unreasonable Director Related Transactions' 'insolvent Trading' 'liquidator Recovery Proceedings']
['practice and Procedure' 'corporations' 'corporate Insolvency'] ['default Judgment' 'voidable Transactions' 'uncommercial Transactions' 'insolvent Transactions' 'unreasonable Director Related Transactions' 'insolvent Trading' 'liquidator Recovery Proceedings']

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Procedural Posture

Application for Default Judgment Pursuant to R 5.23(2)(c) of the Federal Court Rules 2011 (cth) in a Corporations and Corporate Insolvency Proceeding / Determined on the Papers After the Respondents Failed to File a Notice of Appearance and Failed to Attend the Case Management Hearing

Legal Issues

  1. 1 ['Whether the respondents were in default within the meaning of r 5.22 of the Federal Court Rules 2011 (Cth).' 'Whether the Court should exercise its discretion under r 5.23(2)(c) of the Federal Court Rules 2011 (Cth) to enter default judgment against the respondents.' 'Whether, on the face of the statement of claim and supporting affidavit, the applicants were entitled to the relief claimed against the respondents.']

Ratio Decidendi

Default judgment was appropriate because the respondents had been served with the originating process and the order listing the further case management hearing, did not file a notice of appearance, did not attend the hearing, provided no explanation, and thereby indicated that they did not intend to participate or cooperate; on the face of the statement of claim and the affidavit of Gess Michael Rambaldi sworn 29 October 2020, the applicants were entitled to the relief claimed.

Court Disposition

Application granted; default judgment entered against the respondents.

Orders

  • ["The transactions between the first applicant and the first respondent identified in paragraph 9 of the applicants' statement of claim are declared to be uncommercial transactions within the meaning of s 588FB of the Corporations Act 2001 (Cth), insolvent transactions within the meaning of s 588FC of the Act,...