Cooper (liquidator), in the matter of Disclinc Pty Ltd (in liq) v Difonzo (No 2) [2021] FCA 679

Cooper (liquidator), in the matter of Disclinc Pty Ltd (in liq) v Difonzo (No 2) [2021] FCA 679

The Court held that the initiating process was served on the defendant in accordance with r 10.70(2)(a)(i) or r 10.70(2)(a)(iii), or both, and in sufficient time. The defendant had not appeared, filed an address for service or Defence, so he was in default under r 5.22. Because the plaintiff's claim under s 588M(2)...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
24 June 2021
Procedural Posture
Corporations Proceeding; Insolvent Trading Claim by Liquidator for Default Judgment / Interlocutory Process for Default Judgment After Service Outside Australia
Outcome
Default judgment entered for the plaintiff against the defendant with interest and costs.
Legal Topics
['default Judgment' 'service Outside Australia' 'convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters' 'insolvent Trading' 'interest and Costs']
['practice and Procedure' 'corporations' 'corporate Insolvency'] ['default Judgment' 'service Outside Australia' 'convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters' 'insolvent Trading' 'interest and Costs']

Source-derived case record

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Procedural Posture

Corporations Proceeding; Insolvent Trading Claim by Liquidator for Default Judgment / Interlocutory Process for Default Judgment After Service Outside Australia

Legal Issues

  1. 1 ['Whether service of the initiating process on the defendant in the United States satisfied r 10.70 of the Federal Court Rules 2011 (Cth) and Article 5 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.' 'Whether the defendant was in default within r 5.22 of the Federal Court Rules 2011 (Cth).' 'Whether judgment could be entered for the plaintiff under r 5.23(2)(b) for a debt recoverable under s 588M of the Corporations Act 2001 (Cth).' 'Whether the plaintiff was entitled to interest and costs.']

Ratio Decidendi

The Court held that the initiating process was served on the defendant in accordance with r 10.70(2)(a)(i) or r 10.70(2)(a)(iii), or both, and in sufficient time. The defendant had not appeared, filed an address for service or Defence, so he was in default under r 5.22. Because the plaintiff's claim under s 588M(2) of the Corporations Act 2001 (Cth) was a claim for a debt, judgment could be entered under r 5.23(2)(b), with interest and costs.

Court Disposition

Default judgment entered for the plaintiff against the defendant with interest and costs.

Orders

  • ['Pursuant to s 588M of the Corporations Act 2001 (Cth) and r 5.23(2)(b) of the Federal Court Rules 2011 (Cth), judgment be entered in favour of the plaintiff against the defendant in the amount of $329,028.17 (Judgment Sum).' 'Pursuant to s 51A(1) of the Federal Court of Australia Act 1976 (Cth), the defendant pay...