Engineered Thermal Systems Pty Limited v Salmon, In the Matter of Salmon & Speck Pty Ltd (In Liq) [2012] FCA 1159

Engineered Thermal Systems Pty Limited v Salmon, In the Matter of Salmon & Speck Pty Ltd (In Liq) [2012] FCA 1159

The second defendant was in default because he failed to file a Notice of Address for Service, file a Defence, attend Court, and comply with the order to file and serve a Defence. The plaintiff's insolvent trading claim under s 588M(3) was a claim in debt, engaging r 5.23(2)(b), and the Statement of Claim pleaded all necessary elements of the statutory cause of action, engaging r 5.23(2)(c). Default judgment against the second defendant would not bind or prejudice the first defendant because deemed admissions by the defaulting party are not attributed to other parties. The Court therefore entered judgment by default for the plaintiff against the second defendant, but declined to make...

Jurisdiction
Australia
Judgment Date
23 October 2012
Procedural Posture
Application for Judgment by Default in a Corporations Act Proceeding Alleging Insolvent Trading / Interlocutory Application for Default Judgment Against the Second Defendant
Outcome
Default judgment granted in favour of the plaintiff against the second defendant; declarations not made.
Legal Topics
['default Judgment' 'insolvent Trading' 'director Liability' 'corporations Act Proceeding']
['practice and Procedure' 'corporations Law'] ['default Judgment' 'insolvent Trading' 'director Liability' 'corporations Act Proceeding']

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Procedural Posture

Application for Judgment by Default in a Corporations Act Proceeding Alleging Insolvent Trading / Interlocutory Application for Default Judgment Against the Second Defendant

Legal Issues

  1. 1 ['Whether the second defendant was in default within r 5.22 of the Federal Court Rules 2011 (Cth).' "Whether the plaintiff's claim against the second defendant was for a debt or liquidated damages within r 5.23(2)(b) of the Federal Court Rules 2011 (Cth)." 'Whether the Court was satisfied on the face of the Statement of Claim that the plaintiff was entitled to relief under r 5.23(2)(c) of the Federal Court Rules 2011 (Cth).' "Whether default judgment against the second defendant should be refused because of possible prejudice to the first defendant's defence."]

Ratio Decidendi

The second defendant was in default because he failed to file a Notice of Address for Service, file a Defence, attend Court, and comply with the order to file and serve a Defence. The plaintiff's insolvent trading claim under s 588M(3) was a claim in debt, engaging r 5.23(2)(b), and the Statement of Claim pleaded all necessary elements of the statutory cause of action, engaging r 5.23(2)(c). Default judgment against the second defendant would not bind or prejudice the first defendant because deemed admissions by the defaulting party are not attributed to other parties. The Court therefore entered judgment by default for the plaintiff against the second defendant, but declined to make...

Court Disposition

Default judgment granted in favour of the plaintiff against the second defendant; declarations not made.

Orders

  • ['Pursuant to r 5.23(2)(b) and (c) of the Federal Court Rules 2011 (Cth), there be judgment by default in favour of the plaintiff against the second defendant in the amount of $371,683.80 inclusive of GST and interest up to and including this day (23 October 2012).' "The second defendant pay the plaintiff's costs of...