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Category: Principal judgment

Parties: Richard Albarran in his capacity as joint and several liquidator of KPG Services (NSW) Pty Ltd (in liq) (First Plaintiff)
Kathleen Vouris in her capacity as joint and several liquidator of KPG Services (NSW) Pty Ltd (in liq) (Second Plaintiff)
KPG Services (NSW) Pty Ltd (in liq) (Third Plaintiff)
Ben Pinner (Defendant) (No appearance)

Representation: Counsel:
T Dickinson (Plaintiffs)
Solicitors:
Watson Webb (Plaintiffs)

File Number(s): 2026/00092160

Publication restriction: Nil

JUDGMENT – EX TEMPORE (REVISED)

1. By way of the notice of motion 11 August 2026, the plaintiffs seek default judgment in an amount of $847,088.70.

2. The defendant has never appeared in these proceedings

3. By summons filed 5 March 2026, the plaintiffs sought the following relief:

1. Entry of the consent judgment at pages 19 to 24 of Exhibit KV-1 to the Affidavit of Kathleen Vouris sworn 5 March 2026 pursuant to rule 36.1A of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) or its inherent jurisdiction.

2. In the alternative, judgment for the Plaintiffs against the Defendant in the amount of $847,088.70.

3. Costs.

4. Interest on costs.

5. Interest.

4. The plaintiffs’ claim is as follows:

5. The first and second plaintiffs are the liquidators of the third plaintiff. They commenced a proceeding against the defendant and one other person in March 2025 (ie, 12 months earlier than the commencement of these proceedings).

6. On 19 June 2025, the plaintiffs and the defendant entered into a Settlement Deed. Pursuant to clause 2 of the settlement deed, according to the plaintiffs’ pleading to which I will return below, the settlement deed provided for the payment of a $50,000 settlement sum in instalments pursuant to an agreed schedule between 7 July 2025 and 7 July 2026.

7. The deed further provided that the defendant was to execute a consent judgment providing for judgment against the defendant in an amount of $847,088.70 and that upon any default by the defendant, the plaintiffs would become immediately entitled to file the consent judgment with the Supreme Court.

8. The plaintiffs’ pleading continues that on 25 July 2026, the plaintiffs discontinued the 2025 proceedings against the defendant.

9. The defendant paid three instalments between 8 July 2025 and 12 September 2025, in a total of $16,666.33.

10. The defendant failed to make any further payments.

11. The plaintiffs claim an entitlement to file the consent judgment, or alternatively, an entitlement to judgment in an amount, subject to what I say below of $847,088.70

12. The matter came before Chen J on 3 June 2026. At that time, the plaintiffs had not articulated the basis for the final orders which they sought in any pleading, although it appears that either in an affidavit or otherwise, the basis for that claim had been articulated before Chen J. Justice Chen expressed some concern about the power of the Court to enter a consent judgment, which was given in discontinued proceedings, in these fresh proceedings where the basis had not been clearly articulated in the pleadings. It is not necessary for me to rule on that matter.

13. On 18 June 2026, the plaintiffs filed points of claim, which pleaded the case summarised above.

14. On the evidence before me, the points of claim were served personally on the defendant on 2 July 2026. The summons was also served on the defendant personally on 13 March 2026.

15. On 7 July 2026, this Court made orders for points of defence to be filed by 4 August 2026. The plaintiff notified the defendant of these orders by text message. The evidence establishes that it was to the defendant’s mobile phone.

16. I am satisfied on that evidence that the defendant had notice of the order. Furthermore, the defendant has been in default by his failure to appear since being served with the summons and with the points of claim. I am satisfied on the basis of the affidavit evidence before me that he was served with both these documents personally.

17. The plaintiffs filed the notice of motion before me, as I have indicated, on 11 August 2026. It was served personally on the defendant, together with the orders made by this Court on 11 August 2026 and 25 August 2026. I observe that a plaintiff is not generally required to give the defaulting party notice of the application for default judgment apart from that contained in the statement of claim itself: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [89]. Nevertheless, the plaintiffs have done so and I am satisfied the defendant has notice of this application.

18. The matter was called outside and the defendant did not appear.

19. Part 16 of the UCPR (dealing with default judgment) is not strictly engaged, because Pt 16 applies to proceedings commenced by statement of claim: see r 16.1. The plaintiffs rely on two decisions of Hammerschlag J involving proceedings that were not commenced by statement of claim but by summons and commercial list statement. Following failure by a defendant to file and serve a commercial list response, his Honour granted judgment for the plaintiff: Sinopec International (Australia) v Su [2019] NSWSC 269 at [37]-[40], and see [43]; The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd [2021] NSWSC 1175 at [12]-[14]. His Honour entered judgment for the plaintiff in each case, relying on the power to give judgment in s 61(3) of the Civil Procedure Act 2005 (NSW) and an analogy to Pt 16 of the UCPR. Justice Brereton followed this reasoning in Toyota Finance Australia Ltd v Suntsova [2025] NSWSC 94 in proceedings commenced by summons but in which a statement of claim was later filed. In this case, the points of claim serve the same function as a statement of claim, and on their face are pleaded in accordance with the requirements for a statement of claim. The points of claim were served on the defendant personally. The other requirements of Pt 16 have been complied with. I am satisfied that it is appropriate to enter judgment pursuant to s 61 of Civil Procedure Act on the basis of an analogy to Pt 16.

20. That pleading provides a basis for judgment in an amount of $847,088.70 minus the amount admitted as already received, that is, $16,666.33. I would not lightly construe a settlement deed as contemplating the entry of judgment in an amount that did not give credit for the amounts received. Nothing in the pleading suggests that the settlement deed should be construed that way. If it were so construed, questions might arise as to whether or not a penalty would appear from the face of the plaintiffs’ pleading. In any event the plaintiffs did not seek to be heard against my entering judgment for the lower amount. Accordingly, it is not necessary to offer a concluded view on this matter.

21. As for interest, the plaintiffs provided the Court with a schedule of interest calculation from the first date of substantial default ie, the first failure to pay a whole instalment. That failure occurred on 7 October 2025 so that the interest calculation ran from 8 October 2025. That figure is higher than the figure proposed in the affidavit in support of the default judgment because the figure in the affidavit calculated interest from the date of commencement of the proceedings. While the plaintiffs’ application does not engage r 16.6 in terms, I am satisfied that it should be applied by analogy to limit prejudgment interest to the amount claimed in the supporting affidavit to the notice of motion. The plaintiff does not seek to be heard against this course.

22. Accordingly, I make the following orders:

23. Judgment for the plaintiffs against the defendant in the amount of $830,422.37

24. Payment of pre-judgment interest up to today being $36,549.65.

25. The defendant is to pay the plaintiffs’ costs.

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Amendments

01 October 2026

Paragraph [13] line 4, [14] line 1, [15] item (3) and coversheet - "plaintiff" changed to "plaintiffs" Paragraph [4] item (7) - "saw" changed to "say" Paragraph [8] line 1 - "made orders made" changed to "made orders"