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[2026] ACTSC 159
Supreme Court of the ACT
2026-05-21
Mossop J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Belconnen Concrete Services Pty Ltd v Core Projects (ACT) Pty Ltd Citation: [2026] ACTSC 159 Hearing Date: 20 May 2026 Decision Date: 21 May 2026 Before: Mossop J Decision: (1) Direct that the application for leave to appeal dated 25 March 2026 be treated as an appeal and that the draft notice of appeal which is annexure A to the affidavit of Gabrielle Inness Bland dated 25 March 2026 be taken to be the notice of appeal. (2) The appeal is dismissed. (3) The appellant is to pay the respondent’s costs of the appeal. Catchwords: APPEAL – APPEAL FROM ACT MAGISTRATES COURT – Default judgment – where defendant did not file a defence but debt and costs subject of cause of action paid in full prior to hearing – where magistrate declined to enter default judgment – held no utility in pronouncing a default judgment for a nil amount – appeal dismissed with costs Legislation Cited: Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 100, 102, 1117, 1120(2), 1120(3)(b), 1121, 1163 Magistrates Court Act 1930 (ACT), s 274 Legislation Act 2001 (ACT), s 146 Cases Cited: Hughes v Justin [1894] 1 QB 667 Parties: Belconnen Concrete Services Pty Ltd (Appellant) Core Projects (ACT) Pty Ltd (Respondent) Representation: Counsel R McGilvray (Appellant) D Shillington (Respondent) Solicitors McGilvray (Appellant) Crisp Law (Respondent) File Number: SCA 9 of 2026 Decision Under Appeal: Court: ACT Magistrates Court Before: Magistrate Stewart Date of Decision: 18 March 2026 Case Title: Belconnen Concrete Services Pty Ltd v Core Projects (ACT) Pty Ltd Court File Number: CS 182 of 2025 MOSSOP J: Introduction
Leave to appeal not required
Section 274 of the Magistrates Court Act 1930 (ACT) provides: 274 Cases in which appeal may be brought (1) An appeal may be brought only with the leave of the Supreme Court. (2) However, an appeal may be brought as of right from a judgment or order— (a) for, or for the payment of, an amount of $2 000 or more; or (b) in a proceeding in the Magistrates Court— (i) in which the matter in issue amounts to, or is of the value of, $2 000 or more; or (ii) that involves directly or indirectly a claim, demand or question to or in relation to any property or any civil right amounting to, or of the value of, $2 000 or more.
The parties proceeded on the basis that leave to appeal was necessary. There was no agreement as to the quantum of the costs order made by the magistrate. However, I infer that a costs order arising from a contested application for default judgment where the defendant was represented by counsel is, at least, a “question to or in relation to any property or any civil right amounting to, or of the value of, $2 000 or more”.
Therefore, leave to appeal was not necessary.
Rather than simply dismiss the application for leave to appeal, and in order to address the substance of the matter, I will direct that the application for leave to appeal be treated as an appeal and that the draft notice of appeal be taken to be the notice of appeal.
The decision below
It is uncontroversial that the defendant did not file a defence within the 28 days following service of the originating claim. However, less than a week after the end of the 28 days, it paid the amount claimed plus an agreed amount for costs. The defendant indicated that it would consent to a discontinuance by the plaintiff on the basis that each party bear its own costs, avoiding the default operation of r 1163 of the Court Procedures Rules 2006 (ACT). Notwithstanding that, the plaintiff applied for default judgment.
The magistrate addressed the matter by concluding that the circumstances involved an exception to r 1117 of the Court Procedures Rules. The relevant reasons referred to the payment in full after the expiry of 28 days and continued: Rule 1117 doesn’t contemplate such a resolution of a matter. It requires, in essence, strict compliance with the 28-day rule for answering such a statement of claim, and on a strict reading of that rule, the defendant is in default. What is interesting is that the rule is headed in this way, ‘When is a defendant in default - generally?’ The litigation has taken an unusual course, that is, that the statement of claim has been satisfied in full and there is nothing more to seek other than perhaps costs of pursuing a default judgment. In my view, this is an exception to rule 1117, that is, that whilst the behaviour of the defendant falls by a few days outside of the stipulations within the rule, the judgment, if given, would be a nothing. That is, there is nothing that the court can grant other than a statement that the defendant was not in compliance with the strict conditions of rule 1117 by a matter of a few days. In the case of Hughes v Justin, which is a Queen’s Bench decision of 1894 in the Court of Appeal, February 20 of that year, sets out that essentially when a debt has been paid, no judgment can be returned because the cause of action has been satisfied. In my view, that is the case here. There is no basis for a default judgment because the debt has been satisfied ...
The orders made by the magistrate were as follows: 1. The application for default judgment is refused as the sums sought in the originating claim have been paid in full. 2. Costs are awarded to the defendant of and incidental to the default judgment application as agreed or as assessed in default of agreement. 3. If a notice of discontinuance is not filed within 14 days by the plaintiff, the matter may be called on with 72hrs notice. Grounds of appeal
There are four grounds of appeal. a. His honour erred by not entering default judgment in favour of the plaintiff after finding that the defendant was in default, and remained in default, as defined by Rule 1117(1)(a)(i) of the Court Procedures Rules 2006. b. His honour erred in finding that the payment from the defendant of the claim constituted an exception to Rule 1117 of the Court Procedures Rules 2006. c. His honour erred in ordering the plaintiff to pay the costs of the defendant. d. His Honour erred in finding principles in Hughs v Justin [1894] QB 667 is binding and that its ratio decidendi is that “essentially when a debt has been paid, no judgement can be returned because the cause of action has been satisfied”. Appellant’s submissions
The appellant submitted to the magistrate that it was entitled to default judgment because the respondent was in default, having not filed a notice of intention to respond or defence within the time required by r 102 of the Court Procedures Rules, and therefore being within the definition of “in default” in r 1117(1)(a)(i). It noted that r 1120(3)(b) contemplates a situation in which the amount sought had been paid and costs were claimed in addition. It then took the next step and asserted that even if the whole of the debt and all of the costs had been paid, then that did not prevent the appellant from obtaining default judgment.
On appeal, the appellant submitted that the magistrate was wrong to treat the present circumstances as an exception to r 1117 because that was inconsistent with the terms of that rule.
The appellant also raised, for the first time, the fact that counsel for the respondent had contested the application for default judgment without having sought leave to appear as required by r 100 of the Court Procedures Rules. Having not taken any point about this before the magistrate, and in circumstances where leave, if sought, would almost certainly have been granted, this submission does not provide or support any ground of appeal.
Counsel for the appellant accepted that the decision in Hughes v Justin [1894] 1 QB 667 precluded the signing of judgment for an amount which had already been paid. However, he maintained a submission that he had made to the magistrate that, because the defendant remained in default, default judgment should be entered against it, even if for a nil amount.
Consideration
Hughes involved a writ to recover a liquidated sum. The plaintiff and defendant, unaware that the writ had been issued, settled the proceedings and the agreed amount was paid. Because the parties had been unaware that the writ had been issued, their agreement did not include any agreement in relation to costs. The writ was then served and the defendant declined to have anything further to do with the matter. Default judgment was signed, but the sheriff was instructed to levy for costs only. The issue before the Court of Appeal was whether or not the judgment should be set aside. The court unanimously held that it should. Lord Esher said: “although the plaintiff was within his rights in issuing the writ he was wrong in signing judgment for more than was then due, and as nothing was due he could only sign judgment for the costs”.
The Court Procedures Rules contemplate the issue of default judgment in a situation in which some of the substantive debt has been paid: r 1120(3)(b). They even contemplate the issue of default judgment where all of the substantive debt has been paid but a costs order is sought in addition: r 1121. They do not expressly contemplate the possibility that a judgment might be entered which does not give an entitlement to any further relief, or only has the effect of bringing the proceedings to an end.
The submissions made on behalf of the appellant must be assessed bearing the following three points in mind.
First, a judgment of the court is unnecessary in circumstances where a plaintiff has been paid in full, including costs. A judgment is of no utility, as the subject matter of the judgment has disappeared, there is no remaining controversy, and there would be nothing to enforce pursuant to the judgment. Discontinuance of the proceedings is an available course in order to bring the proceedings to an end. To do so without an obligation to pay costs obviously needs leave of the court (see r 1163), but this would be an obvious case in which leave would be granted on that basis.
Second, r 1120(2) provides a discretion. The rule says “the court may enter judgment …” The use of the word “may” indicates that there is a discretion: Legislation Act 2001 (ACT) s 146. The existence of a discretion means that there is no obligation upon the court to enter default judgment even if, in the overwhelming majority of cases, it will be appropriate to do so. Here there was a proper reason not to do so.
Third, the Court Procedures Rules are the servant of justice, not its master. They are to be understood as operating against a background of the proper determination of claims and the legislative commands in s 5A of the Court Procedures Act 2004 (ACT). Their proper operation cannot be determined unless by reference to the overall function of court proceedings to determine controversies between parties in a final and binding manner. There was no controversy requiring determination at the time the application for default judgment was made.
When regard is had to these three matters, it is clear that the approach taken by the magistrate was correct. There was no utility in pronouncing a default judgment for a nil amount. It would not be enforceable. There was no longer any controversy which it could determine. There was another obvious way in which to bring the proceedings to an end. There was no other identified utility in the entry of a judgment against the respondent.
One of the appellant’s grounds of appeal asserted that the magistrate was in error in finding that payment from the respondent constituted an exception to r 1117. I accept that it is not possible to find within the terms of r 1117 any exception that accommodates the circumstances in which the amount sought plus costs has been paid in full. Such a circumstance is not referred to in r 1117(1)(a), or in the specific exceptions described in r 1117(2)(a).
However, when read as a whole and having proper regard to the extemporaneous nature of the reasons, I do not consider that the magistrate determined the matter on the basis of statutory interpretation, but rather on the basis that default judgment should not be issued because the debt had been satisfied.
As a consequence, I do not consider that there was any error in the exercise of his discretion. If I am wrong in that conclusion, then it would be a case where the re-exercise of the discretion would plainly involve, for the reasons that I have given, a refusal to order default judgment.
Although unnecessary to rely upon as an additional reason why declining to enter default judgment was the appropriate decision in the present case, it is also worth noting that the entry of a judgment may have had a variety of adverse consequences for the party against whom it was entered. It may trigger obligations under contracts or security instruments. It may affect the capacity to obtain, or the cost of, insurance. It is not something which would be done unless there was some proper reason for doing it. None was identified in the present case.
So far as the ground of appeal relating to costs is concerned, this was not the subject of separate submissions. Having refused to order default judgment, it was plainly open to make a costs order against the appellant in circumstances where the respondent had indicated it would consent to discontinuance on the basis that there was no order as to costs.
Orders
The appeal must be dismissed. Costs will follow the event.
The orders of the Court are: (1) Direct that the application for leave to appeal dated 25 March 2026 be treated as an appeal and that the draft notice of appeal which is annexure A to the affidavit of Gabrielle Inness Bland dated 25 March 2026 be taken to be the notice of appeal. (2) The appeal is dismissed. (3) The appellant is to pay the respondent’s costs of the appeal.
I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date:
Belconnen Concrete Services Pty Ltd
Core Projects (ACT) Pty Ltd