Hanwood Pastoral Co Pty Limited v Kelly [2020] FCA 1020

Hanwood Pastoral Co Pty Limited v Kelly [2020] FCA 1020

Default judgment was entered because Mr Kelly, having been properly served, failed to file a defence or appear, and by operation of the Rules was taken to have admitted the relevant allegations, warranting judgment for Hanwood for the amount relating to the payments to Stintari Pty Ltd, and a declaration of...

Source-derived case information.

Parties
Plaintiff: Hanwood Pastoral Co Pty Limited; First Defendant: Frederick Norman Kelly; Second Defendant: Matthew Joseph Somers; Third Defendant: The Trustee for the MJS Trust ABN 35 138 979 776; Fourth Defendant: Kerry Glen Nichols; Fifth Defendant: K G Nichols Holdings Pty Ltd ACN 113 936 646; Sixth Defendant: Australian Securities & Investments Commission
Jurisdiction
Australia
Judgment Date
07 July 2020
Procedural Posture
Application for Default Judgment in Civil Proceeding / Hearing and Determination of Application for Default Judgment
Outcome
Partial default judgment for the plaintiff against the first defendant
Legal Topics
Directors' Duties, Default Judgment, Statutory Interpretation, Improper Use of Position, Case Management
Corporations Law Civil Procedure Directors' Duties Default Judgment Statutory Interpretation Improper Use of Position Case Management

Source-derived case record

Summary, issues, holding and outcome

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Parties

Hanwood Pastoral Co Pty Limited

Plaintiff

Frederick Norman Kelly

First Defendant

Matthew Joseph Somers

Second Defendant

The Trustee for the MJS Trust ABN 35 138 979 776

Third Defendant

Kerry Glen Nichols

Fourth Defendant

K G Nichols Holdings Pty Ltd ACN 113 936 646

Fifth Defendant

Australian Securities & Investments Commission

Sixth Defendant

Procedural Posture

Application for Default Judgment in Civil Proceeding / Hearing and Determination of Application for Default Judgment

Legal Issues

  1. 1 Whether default judgment should be entered against the first defendant for breach of directors' duties
  2. 2 Whether the first defendant improperly used his position as a director in contravention of s 182(1)(a) of the Corporations Act 2001 (Cth)
  3. 3 Whether the first defendant, by not filing a defence or appearing, admitted the allegations in the statement of claim

Ratio Decidendi

Default judgment was entered because Mr Kelly, having been properly served, failed to file a defence or appear, and by operation of the Rules was taken to have admitted the relevant allegations, warranting judgment for Hanwood for the amount relating to the payments to Stintari Pty Ltd, and a declaration of contravention of s 182(1)(a) of the Corporations Act 2001 (Cth).

Court Disposition

Partial default judgment for the plaintiff against the first defendant

Orders

  • The first defendant pay the plaintiff $1,398,967.62 inclusive of interest up to 7 July 2020
  • The first defendant pay the plaintiff's costs of the application for default judgment