Kucinskas v Lane [2024] NSWSC 373

Kucinskas v Lane [2024] NSWSC 373

The plaintiff's claim was for unliquidated damages arising from alleged sexual assault and/or battery or negligence, not from contract, promise or breach of trust, and therefore was not provable in the defendant's bankruptcy under s 82(2) of the Bankruptcy Act 1966 (Cth). Leave under s 58(3)(b) was not required for the motion. The affidavit material and oral evidence satisfied the requirements for default judgment under r 16.7, so judgment was entered for damages to be assessed and for costs.

Jurisdiction
Australia
Judgment Date
11 April 2024
Procedural Posture
Civil Procedure; Default Judgment for Unliquidated Damages in Personal Injury Proceedings / Notice of Motion Seeking Default Judgment Pursuant to R 16.7 Uniform Civil Procedure Rules 2005 (nsw)
Outcome
Default judgment entered for the plaintiff against the defendant for damages to be assessed and for costs.
Legal Topics
['default Judgment' 'bankruptcy and Provable Debts' 'unliquidated Damages' 'intentional Tort' 'negligence' 'sexual Abuse Allegations']
['civil Procedure' 'bankruptcy' 'torts' 'personal Injury'] ['default Judgment' 'bankruptcy and Provable Debts' 'unliquidated Damages' 'intentional Tort' 'negligence' 'sexual Abuse Allegations']

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Procedural Posture

Civil Procedure; Default Judgment for Unliquidated Damages in Personal Injury Proceedings / Notice of Motion Seeking Default Judgment Pursuant to R 16.7 Uniform Civil Procedure Rules 2005 (nsw)

Legal Issues

  1. 1 ['Whether the plaintiff required leave from the Federal Court under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to take a fresh step in proceedings after the defendant was declared bankrupt.' "Whether the plaintiff's claim for unliquidated damages arising from alleged sexual assault, battery or negligence was not provable in bankruptcy under s 82(2) of the Bankruptcy Act 1966 (Cth)." 'Whether the requirements for default judgment under r 16.7 Uniform Civil Procedure Rules 2005 (NSW) were satisfied.']

Ratio Decidendi

The plaintiff's claim was for unliquidated damages arising from alleged sexual assault and/or battery or negligence, not from contract, promise or breach of trust, and therefore was not provable in the defendant's bankruptcy under s 82(2) of the Bankruptcy Act 1966 (Cth). Leave under s 58(3)(b) was not required for the motion. The affidavit material and oral evidence satisfied the requirements for default judgment under r 16.7, so judgment was entered for damages to be assessed and for costs.

Court Disposition

Default judgment entered for the plaintiff against the defendant for damages to be assessed and for costs.

Orders

  • ['Judgment is given, pursuant to UCPR rule 16.7, for the plaintiff against the defendant for damages to be assessed and for costs.' 'The matter is listed for directions on 7 May 2024 to set a date for the assessment of damages.' 'The defendant and the trustee in bankruptcy are to be informed within 14 days, of the...