Auslink Investment Co Associates Pty Ltd v Sackl [2020] NSWSC 640 | Case summary | Zoe

NSWNSWSC

Auslink Investment Co Associates Pty Ltd v Sackl

[2020] NSWSC 640

Supreme Court of NSW|2020-05-13|Before: Fullerton J, Button J

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At a glance

AI case summary

Result

respondent. Notice of motion dismissed; applicant (Mr Sackl) ordered to pay respondent's (Auslink) costs.

Key principles

The applicant failed to discharge the onus under UCPR 36.16(2)(b) to show it would be unjust to allow the default judgment and subsequent orders to stand, because the Court...
Because the applicant did not establish a bona fide arguable or triable defence on the merits (no draft defence was filed and the evidence relied upon was not credible), the...
Affidavit evidence of personal service by a process server identifying the person served, even where identification relied upon photographic comparison, may be accepted on...

Issues before the court

Whether the defendant's application under UCPR 36.16(2)(b) to set aside default judgment should be granted because it would be unjust to allow the...
Whether personal service of the statement of claim on the defendant was established.
Whether the defendant has a bona fide arguable or triable defence to the substantive claim sufficient to justify setting aside judgment.

Plain English Summary

The defendant sought to set aside a default judgment obtained against him, arguing he was unaware of the proceedings. The Court accepted the process server's evidence that he was personally served, found contemporaneous emails and other documents contradicted the defendant's denials (including a September 2018 'refund' email from the defendant), and held the defendant had no arguable defence. The application to set aside was dismissed and costs were awarded to the plaintiff.

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Deep Dive

1,848 words · generated 06/07/2026

What happened

This judgment concerns an application by James Sackl to set aside default judgment and consequential orders entered in favour of Auslink Investment Co Associates Pty Ltd. Auslink brought proceedings alleging false and misleading conduct and alternatively restitution arising from a Referral Agents Agreement (RAA) executed in February 2017; payments totalling $361,000 were made by Auslink's clients under the RAA (History of the proceedings, paras 3, 6-8). Auslink obtained default judgment after an ex parte assessment of damages before Button J; judgment was delivered on 17 September 2019 and entered on 24 September 2019 (History of the proceedings, paras 13-14). Sackl filed a notice of motion on 18 December 2019 under UCPR 36.16(2)(b) to set aside the orders on grounds that he had not been properly served or otherwise was unaware of the proceedings and, in the alternative, that he had a bona fide defence (Judgment, para 1; The evidence and the issues, paras 6-7).

At hearing before Fullerton J (7 and 13 May 2020), the Court received affidavit and oral evidence from both sides. Critical evidence was two affidavits of the process server, Mr Papst, who deposed to personally serving a person identifying himself as "James Sackl" at Sackl's business premises in Collins Street, Melbourne on 5 November 2018 at 1:40 pm, and later identifying Sackl from photographs (The evidence on the motion, paras 1-3). Auslink relied also on contemporaneous emails sent to email addresses associated with Sackl confirming service (9 November 2018) and advising of hearing arrangements (20 and 26 June 2019) (The evidence on the motion, paras 7, 3). Sackl denied personal service and denied receipt of those emails, and advanced a range of factual denials about the RAA and his personal liability; no draft defence was filed (The evidence and the issues, paras 6, 11; The evidence on the motion, paras 3-5).

Fullerton J preferred the evidence of the process server and Auslink's contemporaneous documentary evidence. The Court found Sackl's denials lacked credibility, accepted Mr Papst's identification evidence as of considerable weight, rejected Sackl's evidence denying service and receipt of emails, concluded that Sackl had not discharged the onus under UCPR 36.16(2)(b) to show it would be unjust to allow the judgment to stand, and found no arguable or triable defence. The application was dismissed and costs were ordered against Sackl (The evidence on the motion, paras 2-5; Orders).

Why the court decided this way

The decision turned on two interlinked assessments: (1) whether the defendant had been given effective notice of the proceedings (service and notice), and (2) whether the defendant had a bona fide arguable defence.

Credibility and proof of service: The Court accepted the sworn evidence of Mr Papst that he personally served a person identifying himself as "James Sackl" at the Collins Street office on 5 November 2018 (The evidence on the motion, paras 1-2). Although the judge recognised the general limitation when identification is made from a single or a small number of photographs without a wider array, she concluded that, on the facts, Mr Papst's recollection was sufficiently clear and his identification persuasive. That evidence carried "considerable weight" in deciding the onus of proving non-service (The evidence on the motion, para 2).
Contemporaneous documentary evidence and admissions: The Court relied on contemporaneous email exchanges. Auslink produced an email by Ms Chen dated 9 November 2018 confirming service and attaching a PDF of the statement of claim to two email addresses associated with Sackl. Further notifications about the assessment of damages were sent in June 2019 (The evidence on the motion, paras 7, 3). Critically, the Court also relied upon a "refund letter" sent by Sackl on 27 September 2018 from the Gmail account which expressly accepted that refunds would be provided "per our terms and conditions" for clients referred, that letter indicated Sackl's knowledge of the RAA and the refund claim and undermined his later denials (History of the proceedings, para 12; The evidence on the motion, paras 6, 11-12).
Absence of an arguable defence: Fullerton J emphasised that no draft defence was filed and that Sackl's affidavits contained inconsistent statements and were contradicted by contemporaneous evidence (The evidence on the motion, para 5). For that reason, and pursuant to the principle in Dai v Zhu, the Court concluded there was no bona fide or arguable triable issue which could justify setting aside the default judgment (The evidence on the motion, para 5).

In short, adverse credibility findings (on service and on non-receipt of emails), the presence of contemporaneous documentary evidence including the refund email authored by Sackl, and the absence of a pleaded or evident triable defence led the Court to refuse relief.

Before and after state of the law

Before this decision, established principles governed applications to set aside default judgments: the applicant must show it would be unjust to allow judgment to stand, typically by proving lack of service/notice or by demonstrating a bona fide triable defence; the discretion should not be exercised where there is no arguable defence (authority cited: Dai v Zhu [2013] NSWCA 412 at [92]) (The evidence on the motion, para 5).

This judgment applies those principles in a straightforward way: where the Court accepts evidence of personal service and finds the defendant had contemporaneous knowledge or could reasonably have known of the proceedings, and where no arguable defence is shown, the discretion to set aside will not be exercised. The case therefore reaffirms the established framework rather than creating new law. It underscores the evidentiary weight a credible process server’s affidavit and contemporaneous emails can carry, and the importance for an applicant to advance a draft or pleaded defence demonstrating arguable merit if seeking to overturn default judgment.

Key passages with plain-English translation

"I accept his evidence ... That evidence is of considerable weight ..." (The evidence on the motion, para 2).
- Plain English: The Court believed the process server’s sworn account and thought it reliable. That made it much harder for Sackl to argue he had not been served.
"To the extent that there be any doubt about it, I reject Mr Sackl's evidence that he was not the person served ... I reject his evidence that he did not receive Ms Chen's email of 9 November 2018 ..." (The evidence on the motion, para 4).
- Plain English: The judge did not believe Sackl's denials that he was served or that he received the email attaching the statement of claim.
"Given the various findings adverse to credit, it follows that Mr Sackl has failed to discharge the onus ... he has failed to offer any credible explanation ... I am not persuaded ... that there is an 'arguable or triable issue' ..." (The evidence on the motion, para 5).
- Plain English: Because Sackl’s evidence was not credible, he did not meet the legal test to set the judgment aside and did not show a real defence to the underlying claim.
"No draft defence was tendered on the application." (The evidence and the issues, para 6).
- Plain English: Sackl did not provide a written defence showing what he would have argued at trial; this omission weighed strongly against him.

What fact patterns trigger this precedent

This judgment is most directly relevant where:

A defendant seeks to set aside a default judgment obtained after ex parte proceedings on the basis of asserted non-service or lack of notice; and
The plaintiff relies on an affidavit of service from a process server plus contemporaneous documentary evidence (email confirmations, etc.); and
The defendant's denials are contradicted by contemporaneous documents or admissions (for example, emails authored by the defendant acknowledging the underlying contractual relationship or refund obligations); and/or
No draft defence or pleaded arguable case is put forward.

In those fact patterns, a court assessing the application will closely scrutinise the credibility of identification by the process server and the presence or absence of contemporaneous documentary evidence. If the server's evidence is credible and there is contemporaneous correspondence showing awareness of the claim, coupled with no pleaded defence, the Court will likely refuse to set aside the default judgment.

How later courts have treated it

At the date of this judgment, Fullerton J applied established appellate guidance (Dai v Zhu) and did not purport to alter the law. Practitioners should treat the case as an application of well-settled principles: courts will accept credible process server affidavits and contemporaneous documentary evidence and will not set aside default judgments where the applicant fails to show both lack of notice and an arguable defence. Where courts later rely on this judgment, they will likely cite it for factual propositions about how to evaluate process server identification and the importance of contemporaneous emails and admissions, rather than to announce new law.

Still-open questions

Identification by photographs: The judgment accepts that identification from one or two photographs has limitations but nonetheless accepted the server's identification given the factual matrix (The evidence on the motion, para 2). Future cases may need to delineate more closely when such identification crosses the threshold of reliability, for example by reference to whether the process server was shown photographs before making his initial memory or only afterwards.
Electronic communications and receipt: The decision rests partly on emails sent to addresses associated with the defendant. Questions arise about the sufficiency of emails to multiple addresses, the habit (or not) of checking particular accounts, and how a defendant's evidence of sporadic use of an address is to be assessed against contemporaneous receipt. Future litigation may explore evidentiary standards for proving non-receipt of emailed service confirmations, and how to weigh evidence that a defendant used or blocked particular addresses at relevant times.
The role of a draft defence: The judgment emphasised the absence of a draft defence. While not a strict prerequisite, in practice applicants should tender a proposed defence to demonstrate arguable merit. The precise threshold for what a draft defence must show to attract setting aside discretionary relief remains fact-sensitive and amenable to further elaboration in subsequent decisions.
Interaction with overseas elements of the claim: Sackl raised issues about whether the Australian Consumer Law extended to conduct 'that may have arisen' in Singapore. Fullerton J did not engage in a deep substantive ruling on extraterritorial application because the application failed on service and merit grounds. Future litigation may require fuller treatment of the extraterritorial reach of the ACL and related statutes where jurisdictional facts are contested.

Practical takeaways for practitioners:

When seeking to set aside default judgment, do not rely solely on asserted non-receipt: present credible and consistent affidavit evidence, tender a plausible draft defence, and address contemporaneous documents directly.
When defending default-judgment set-aside applications, assemble clear evidence of service (process server affidavits, photographic identifications where available), and preserve contemporaneous documentary traces (emails, letters) proving notice.
Be alert to the weight a court will give to admissions and contemporaneous communications by the defendant, such as the refund letter here, even where those communications pre-date formal service.

Judgment (6 paragraphs)

[1]

Solicitors: Cockburn and Co Pty Ltd (Applicant/Defendant) Dentons Australia (Respondent/Plaintiff) File Number(s): 2018/328432

[2]

Judgment

HER HONOUR: By a notice of motion filed 18 December 2019, James Sackl seeks an order setting aside orders made on 17 September 2019 and entered on 24 September 2019 in favour of Auslink Investment Co Associates Pty Ltd ("Auslink") in the amount of $361,000, plus interest calculated in accordance with the Schedule attached to the judgment (Auslink Investment Co Associates Pty Ltd v Sackl [2019] NSWSC 1227 per Button J).
Auslink, as respondent to the motion, opposes the orders sought.

[3]

The evidence and the issues

A Court Book, comprising two lever arch folders, was prepared for the purposes of the proceedings, including extensive written submissions from Mr Silver, counsel for Mr Sackl, and Mr Freeman, counsel for Auslink.
Mr Sackl read two affidavits in support of the motion, the first dated 18 December 2019 and a further dated 30 April 2020 in reply to the affidavits filed by the respondent. He was extensively cross-examined. He also read an affidavit from his former wife, Alina Tang, dated 30 April 2020. She was also cross-examined.
The respondent read affidavits from Xi Chen, a director of Auslink, Shenghai Mo, solicitor, Patrick Dunn, solicitor, and Jianing Weng (also known as Susan Weng), a former employee of a corporation associated with Mr Sackl.
Finally, the respondent read two affidavits from Stephen Papst in which he deposes to having personally served Mr Sackl with the statement of claim dated 26 October 2018. In that claim Auslink sought unliquidated damages against Mr Sackl for false and deceptive conduct pursuant to s 236 in Sch 2 of the Competition and Consumer Act 2010 (Cth), applicable pursuant to ss 5A and 28 of the Fair Trading Act 1987 (NSW) and, in the alternative, a claim in restitution for liquidated damages. That claim was the subject of the orders made by Button J which Ms Sackl applies to have set aside.
Mr Papst was the only witness required by Mr Sackl for cross-examination.
In brief, Mr Silver submitted that the onus imposed on Mr Sackl under UCPR 36.16(2)(b) to demonstrate that it would be unjust to allow the orders to stand has been discharged, in large part because the Court would be satisfied, on the probabilities, that at all relevant times prior to judgment being entered Mr Sackl was unaware that Auslink had commenced proceedings against him. Mr Silver also submitted that the Court would be satisfied, having regard to the various matters addressed by Mr Sackl in his affidavits, that he has a defence to the claim on the merits. I note that no defence has been filed. No draft defence was tendered on the application.
Mr Freeman submitted that the Court would be satisfied that Mr Sackl was in fact personally served with the statement of claim by Mr Papst at Mr Sackl's business premises in Collins Street, Melbourne on 5 November 2018 at 1:40pm and, further, that the probabilities favour the Court finding that on 9 November 2018 he received an email, sent by Ms Chen to james@dash.com.au and james8sackl@gmail.com (both addresses associated with Mr Sackl) and copied to Ms Tang at her email address, confirming the fact of service and attaching a copy of the statement of claim in PDF format. Mr Freeman also submitted that the probabilities favour the Court finding that on 20 June 2019 Mr Sackl received an email from Steve Mo, solicitor for Auslink (also sent to the same email addresses) notifying him of the orders made by Button J that day specially fixing the hearing for the assessment of damages on 26 June 2019. Mr Mo also sent a notice of the damages hearing by mail on 26 June 2019 to the street address in Melbourne at which personal service had been effected. It would appear from an ASIC search that address ceased to be the official address for Mr Sackl's business on 1 August 2019.
Before turning to consider whether Mr Sackl has discharged the onus imposed upon him under UCPR 36.16(2) of satisfying the Court that in all the circumstances it would be unjust to allow the orders against him to stand, a question which involves an assessment, inter alia, of whether I regard his evidence that he was unaware of the proceedings as truthful, it is necessary to review, in a summary way, the nature of Auslink's claim against Mr Sackl and the circumstances in which that claim arose. What follows is derived from the statement of claim and his Honour's reasons for judgment.

[4]

The history of the proceedings

Auslink is a corporation that provides migration and education agency services to Chinese nationals who are seeking to migrate to Australia or to study in Australia.
Mr Sackl was a director of Sino Resources Group Pty Ltd ("Sino Singapore"). That company was formally registered in Singapore but was struck off the register of companies on 4 July 2016. Thereafter, it had no legal capacity to enter into any binding contractual arrangements. Mr Sackl was also the sole director and shareholder of Sino Resources Group (Aust) Pty Ltd ("Sino Australia") from 1 November 2015. That company was wound up by an order of the Federal Court of Australia on 12 October 2018.
In about January or February 2017, Ms Chen, on behalf of Auslink, entered into contractual negotiations with Mr Sackl. He was introduced to Ms Chen by Ms Weng as the Chief Executive Officer of Sino Singapore, a company which Ms Chen was told operated a "migration division" with branches all over the world. Ms Chen was also told that Sino Singapore was the parent company of Sino Australia and that both companies were managed by Mr Sackl.
At a meeting on 6 February 2017 attended by Ms Chen, Mr Sackl and Ms Wang, it was agreed that Auslink would advertise its services with a view to identifying potential clients in China and elsewhere who wished to migrate to Australia. Thereafter, Auslink would introduce their clients to Sino Singapore who would engage migration agencies to organise visas and identify Australian employers who would be willing to support the visa applications of Auslink's clients.
A Referral Agents Agreement ("the RAA") produced by Mr Sackl at the meeting was executed by Ms Chen on behalf of Auslink and by Mr Sackl on behalf of Sino Singapore. At the time of contract Ms Chen was not aware that Sino Singapore did not have the legal capacity to contract.
The RAA stipulated that Auslink would pay Sino Singapore, in advance, for the services to be provided by them at specified stages of the agreement being executed. It also provided for a refund policy of all payments made by Auslink to Sino Singapore on behalf of its clients where the specified services were not delivered by Sino Singapore.
Between 28 March 2017 and 26 April 2018, thirteen payments totalling $361,000 were received by Auslink from its clients under the RAA and paid to Sino Singapore. Three payments totalling $176,000 were deposited to Mr Sackl's personal bank account with the balance deposited to a nominated account or accounts associated with Sino Australia.

[5]

The evidence on the motion

Mr Papst's affidavit of service of 21 November 2018 is expressed in relatively formal language. He deposes to having personally served a person who identified himself as "James Sackl" at a nominated business address in Collins Street, Melbourne. In terms, Mr Papst said: At the time of service, I asked, "Are you James Sackl, the person named as the Defendant in this action?". The person served replied "Yes."
That affidavit was prepared in support of Auslink's application for default judgment and for the assessment of damages to be undertaken ex parte.
A further affidavit was obtained from Mr Papst for the purpose of these proceedings. In that affidavit, dated 20 February 2020, Mr Papst deposes to having a memory of attending the offices in Collins Street, Melbourne on 5 November 2018 when personal service on Mr Sackl was effected. He gave the following evidence: I recall that on 5 November 2018 I asked the receptionist at the Office if I could meet with James Sackl. I told the receptionist I had something for Mr Sackl that I needed to drop off. The receptionist went into the Office and returned with the man I identified as Mr Sackl. I recall that he was well dressed, but didn't wear a tie. I recall being surprised that Mr Sackl was younger than I had expected.
It appears that he was shown two photographs of Mr Sackl by Auslink's solicitor for the purposes of swearing the second affidavit. At paragraph 8 of that affidavit Mr Papst identifies the person in each of the photographs as the same person who identified himself as "James Sackl" on 5 November 2018, being the person upon whom he effected personal service of the statement of claim at that time. Mr Papst agreed in cross-examination that he was told that the photographs that he was shown by the solicitor were photographs of Mr Sackl, that is, he was not shown a photographic array of a number of people and invited to identify, if he could, the person he had served on 5 November 2018. It is not suggested that either photograph is other than a photograph of Mr Sackl at about the time of service.
In cross-examination Mr Papst confirmed that, as at November 2018, he had been working as a process server for a period of three months (since August 2018). He agreed that customarily his contact with the person to be served was relatively brief, sufficient to satisfy himself that personal service could be effected. He disagreed with the proposition that his working day would be "one long blur" and that he would not be able to remember the faces of those he had served in any one day. When it was put to him that he did not have a clear memory of what happened on 5 November 2018 before he was invited to prepare a further affidavit in February 2020, he disagreed. He gave evidence that he was able to recall the somewhat casual dress of the person he served. He said: I just sort of, I just sort of remembered. I was thinking that someone being a ‑ this is just a subconscious thinking of someone who was running a training institute would, possibly, going to be an older chap.

[6]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2020

Mr Sackl gave evidence that "the dash email account" to which he copied Mr Dunn's email of 29 October 2019 (being one of the email addresses to which Ms Chen had sent confirmation of service in November 2018 and to which Mr Mo had forwarded correspondence in June 2019) ceased to be used by him in early 2018. He also gave evidence that "the Gmail account" to which the same correspondence had been sent by both Ms Chen and Mr Mo was not used regularly by him in 2018 or 2019. The explanation for why both addresses were reactivated in October 2019 in his correspondence with Mr Dunn bears close scrutiny. He said: Q. Well, the email addresses … appear on correspondence of that date both sent by you and copied to you. On what basis do you say that they were not email addresses used by you? A. On the basis that I, to the email from Mr Dunn I simply did "reply all". So it included an email address that he had sent it to which was James@dash.com.au and it was also to Soon Christopher, copied in the email. And that is the reason they appear as a carbon copy on the email address. Q. Is that your explanation for why james@dash.com.au appears in the copy line? A. That's correct, your Honour. Q. Can you explain to me then why the james8sakl@gmail.com appears in the line attached to your name as the email address from which that correspondence was sent? A. Yes, because that is the email address that I used to respond to Mr Dunn. Q. How does that evidence stand with your previous evidence that that was not an email address regularly used by you in 2019 because it was not loaded on to the server which served any of your devices? A. I would have needed to have logged in through the Gmail web application, so the Gmail website. I still maintain it wasn't an email address that was loaded on to any of my devices, your Honour. And it wasn't an email address that I checked regularly. HER HONOUR. Q. Why is it an email address you used to correspond with a solicitor? A. Because it was the email address that I was contacted via. And once this matter came to my attention it was the email address that I opted to use. Q. So you did opt to use it regularly in all of your legal dealings with Denton's after it came to your attention that default judgment had been entered against you? A. That's correct, your Honour. Q. But you maintain the evidence, do you that it was not an email address that you used at any time prior to that with any regularity? A. That's correct, your Honour.

Mr Sackl was asked how his use of "the Gmail account" to correspond with Ms Chen in September 2018 about "refunds" should be understood in light of his earlier evidence that it was an account he used only sporadically. He gave evidence that he had directed his IT contractor to divert certain "key words" to an "H in Box" to divert harassing emails from Ms Chen. In re-examination he gave the following further evidence as to why he used "the Gmail account" to send the refund letter in September 2018: Q. Could you explain again why you used that email [james8sackl@gmail.com] and not another email on that occasion? A. Sorry, the reason why I chose to use the james8sackl@gmail address was because at that point in time our IT contractor had already barred the receival and sending of emails that had certain key words in them, and one of them was, yes, the email address and the name of Ms Chen, so had I sent one out of there, it would not have sent out to her. Q. I see. You said that you sometimes‑‑ HER HONOUR: Sorry, I don't understand that. Q. So you used the james8sackl email because were you to use some other email it would have blocked Ms Chen as a sender, as a recipient? A. It would have done both, your Honour. Q. Why were you blocking a person with whom you had a commercial relationship? A. I think there was seven or eight email addresses that she was emailing on a frequent basis, I think it was several times a week, to unrelated businesses, and a decision was made that these emails were unsolicited and they were put into a storage inbox by our IT contractor.
No emails from Ms Chen (harassing or otherwise) that had been diverted from Mr Sackl's email account and held in a separate location were produced. When asked to nominate the email address used as a dedicated email for his commercial or business purposes in 2018 or 2019 he nominated: js@komma3.com.au. He claimed that was the email address supplied by him in his commercial dealings with Auslink. No email correspondence was produced in support of that assertion.
In cross-examination Ms Tang gave evidence that to her knowledge Mr Sackl used both "the Gmail account" and "the dash email account" email addresses in November 2018 but that he "blocked people" from his "Gmail account", including Ms Chen because she sent him "nasty emails".
Mr Sackl was not asked, either in further cross-examination or in re-examination, how his evidence of his knowledge of the various matters of fact in [38] above as at September 2018 was to be understood in light of his further evidence in cross-examination that while he was aware "payments had been received" from Auslink he was not aware of the amounts paid into his personal account or company account because he did not have any information about the contracts under which those payments had been made; he had no clear idea what clients had been referred by Auslink and he had no idea of the quantum of any refund claimed other than it was more than $1. He also gave evidence that after he sent the refund letter he did not have any further communication with Ms Chen concerning the refunds he was prepared to make, from which I assume he made no enquiries to determine the extent of any liability he or Sino Singapore might have had to Auslink despite telling Ms Chen in the refund letter that he was prepared to make payment, from the sale of a number of encumbered properties the subject of "divorce proceedings", after undertaking a "review of the circumstances that triggered [the] refund".
He did assert in his reply affidavit of 30 April 2020 that the "terms and conditions" to which he made reference in "the refund letter" related to a contract "any client would needed to have signed to engage the services of Sino Singapore". In re-examination he said of the refund letter he had no knowledge of the amount of the refunds, as refunds were not his concern but the responsibility of his chief financial officer, and that it was only if refunds were due and payable to Auslink that he needed to consider the particular RAA and the transactions entered into pursuant to it in order "to have any meaningful follow up with Ms Chen".
It was this aspect of Mr Sackl's evidence which Mr Silver submitted would satisfy the Court that, despite the refund letter and the concessions Mr Sackl made in his evidence about it at [38], he had a bona fide defence to Auslink's claim on the merits such that, even were the Court "troubled" by Mr Sackl's evidence denying service of the statement of claim, the Court should exercise its discretion in his favour and set aside the orders.
There are two other aspects of the evidence which I am satisfied are directly associated with the refund letter to the RAA upon which Auslink's successful claim for damages was based. This evidence provides further support for the conclusion I have reached that Mr Sackl well knew as at 27 September 2018, when he sent the refund letter, that the contractual source of Auslink's claim for a refund was the RAA that had been executed by him, and that he well knew the quantum of that claim, despite the affidavits sworn by him in these proceedings in which he claims to have had no knowledge of Auslink's claim for liquidated or unliquidated damages or the fact that Auslink commenced proceedings to recover those damages.
The first aspect of this evidence is Ms Chen's affidavit of 20 December 2018, prepared in support of the substantive proceedings and read in these proceedings. In that affidavit she deposes to a meeting in August 2018 with Mr Sackl and his wife, Ms Tang. At paragraph 30 of that affidavit Ms Chen deposes to a conversation with Mr Sackl where she confronted him with her belief, on the basis of enquiries she had made, that the employers nominated by Mr Sackl as prepared to support the visa applications of Auslink's clients were "not real" and, that being the case, that she asked that the monies advanced by Auslink's clients and paid to either Mr Sackl personally or the Sino Singapore bank account be refunded. She deposes to the following conversation: Ms Chen: We have tried to contact employers, but they still denied they knew about the clients. Mr Sackl: Don't worry. I will fly to Adelaide to deal with that. I am trying my best to handle these issues and will resolve them. We will also go to Canberra to seek help from some higher level officers. There will be some extra charge though. Ms Chen: Forget about the extra charge. I only care about how and when you are going to resolve the issues. According to the Department of immigration's letters the employers used by you are not real. You lied to us. We need refund. Mr Sackl: No, I did not lie to you. These employers are real. We have already paid them. But we can return the money back if you insist. You are required to complete a refund application form and we can process the refund. Ms Chen: Do you have money to refund now? Mr Sackl: Yes, we do have some assets. I have owed [sic] approximately 13 residential properties in Melbourne, a farm in South Australia and a school in Melbourne. Ms Chen: Ok. I will complete the refund forms and let's go from there.
The second aspect of the evidence is a letter from Ms Chen sent by email on 12 September 2018 with the subject heading "refund for visa link" to Ms Tang and copied to various people, including a person identified in the evidence said to be the Chief Financial Officer of Sino Singapore. The emailed letter was also sent to Mr Sackl at his "dash email account". I note that Ms Tang gave evidence that Mr Sackl used both the "dash email account" and the "Gmail account" in 2018 and 2019. The letter was addressed to Mr Sackl and his wife and included the following: Hey Alina and James I hope this email finds you both well. Please find the SINO refund form from AICA filling in details. Ku-Ming WANG Corporate Service Manager 187 $36,000 Nan LU Marketing Specialist 187 $36,000 Xiaoying MA Construction Project Manager 187 $121,000 Weijie BU Marketing Specialist 187 $30,000 Siyuan DENG Multimedia Specialist 187 $30,000 Xiaoying HU Management Consultant 187 $36,000 Liqian HU Corporate Service Manager 187 $36,000 Mengxinyi YANG Program and Project Administrator 187 $36,000 The full amount of refund from SINO will be total $361,000, and prompt repayment to AICA will be appreciated. If you have any repayment difficulties to repay in time, please let us know the timeline of the instalments instead. If you have any other enquiries regarding this email, please no hesitate to contact with us [sic].
Given that the refund letter dated 27 September 2018 was sent within two working weeks of this emailed letter, I am simply unable to accept Mr Sackl's evidence that he did not receive it or that the refund letter sent from his "Gmail account" was not directly responsive to it. His evidence that he had a very pleasant meeting with Ms Chen on 6 August 2018 (the first and only time he met her) about unrelated commercial dealings where the refunds were not discussed at all is directly contradicted by Ms Chen. She was not required for cross-examination on the application. Ms Chen's account of that meeting, including Mr Sackl's reference to assets he has available to meet any amount claimed by way of refund, is telling given Mr Sackl's reference to those assets in the refund letter.
Ms Tang gave evidence that she attended the same August 2018 meeting and that when Ms Chen introduced herself to her and her husband, neither of them had met her before. She said that they apologised to Ms Chen for "the way cases were handled by Susan [Ms Weng]" but that refunds were not discussed. I have grave doubts that Ms Tang's evidence concerning the August 2018 meeting with Ms Chen was truthful in circumstances where I have similar doubts as to the truthfulness of her evidence that Ms Chen's email to Mr Sackl of 9 November 2018 advising him of service of the statement of claim with a PDF copy attached and copied to her was not received by her. Ms Chen's email was sent to Ms Tang at 11:26 on 9 November 2018. At 12:18 the same date, Ms Tang sent an email to Ms Chen which reads, "Thanks Cathy, mind send me contract signed with Sino". Whilst she denied this was a reference to the RAA upon which Auslink's claim was based, I regard her denial as not credible and the explanation for her email as untenable.
Furthermore, I am unable to except that Mr Sackl has given credible evidence about any of the various facts in issue raised in these proceedings such as might attract the exercise of the discretion to set aside the orders made by Button J.
To the extent that there be any doubt about it, I reject Mr Sackl's evidence that he was not the person served with the statement of claim on 5 November 2018; I reject his evidence that he did not receive Ms Chen's email of 9 November 2018 confirming service of the statement of claim and attaching a copy of the claim in PDF format and I reject his evidence that he did not receive Mr Mo's email of 20 June 2019 advising of the listing of the hearing of the assessment of damages. I am unable to reach any settled view, even on the probabilities, as to whether he received the correspondence mailed to his Collins Street business address on 26 June 2019.
Given the various findings adverse to credit, it follows that Mr Sackl has failed to discharge the onus of persuading me that he was neither personally served with the statement of claim nor otherwise aware of the proceedings before final orders were entered. In the result, he has failed to offer any credible explanation for how he became bound, in his absence, by a judgment regularly obtained such as might justify the exercise of the discretion in his favour. Further, I am not persuaded, on the evidence before me, that there is an "arguable or triable issue" or that the defence asserted by Mr Sackl is bona fide. Being of that view, I am not satisfied that any useful purpose would be served by setting aside the orders made: Dai v Zhu [2013] NSWCA 412 at [92].
The orders sought by the notice of motion are refused.
I make the following orders: 1. The notice of motion is dismissed. 2. The applicant is to pay the respondent's costs.