BRISLAN -v- ENGELHARD NOMINEES PTY LTD [2024] WASC 131 (17 April 2024)

The procedural requirements for default judgment

1. The procedural requirements for judgment to be entered in default of appearance are set out in O 13 RSC and were recently considered in some detail by Lundberg J in David Allan Collison as administrator of the estate of Diane Carol Collison v Collison.[1]
2. Order 13 r 9 RSC applies where, as in this case, a plaintiff's claim is other than for the recovery of a debt, damages, land or goods. The plaintiff in this case seeks injunctive relief, an equitable discretionary remedy.
3. Relevantly, the procedural requirements that must be satisfied by an applicant on motion for default judgment under O 13 r 9 RSC are:

(a) The proceeding must have been commenced by writ of summons.[2]

(b) Service of the writ on the defendant must be verified by affidavit, together with indorsement of service on the writ in accordance with O 9 r 1(4).[3]

(c) No appearance has been filed by the defendant within the time limit for appearing.[4]

(d) If the statement of claim was not indorsed on or served with the writ, the plaintiff must serve the statement of claim on the defendant.[5]

(e) The plaintiff must produce a certificate issued by the proper officer on the day of the hearing stating that no appearance has been entered by the defendant.[6]

1. Only once all those procedural requirements are satisfied may the court consider the exercise of the discretion to grant default judgment for the relief sought.
2. Generally, in the absence of an appearance and any responsive pleading from the defendant, the allegations made in the statement of claim are deemed to be admitted.[7] An entitlement to the relief claimed must be disclosed in the plaintiff's pleading, and evidence is not admissible to support or supplement the pleaded facts. However, where a plaintiff is seeking an equitable or discretionary remedy, the court must be sufficiently informed of the circumstances to properly exercise its discretion to grant or withhold the remedy.[8] As observed by Martin J in City of Stirling v Deuschen,[9] it is appropriate in moving for default judgment to adduce evidence to show a basis for the grant of the discretionary injunctive relief sought.

The evidence relied upon in support of the motion for default judgment

1. In support of his motion for judgment in default of appearance for the relief sought in the writ, the plaintiff relies upon:

(a) an affidavit sworn by him on 30 January 2024; and

(b) affidavits of Charmaine Ruth James and Faegh Kazemi affirmed on 15 February 2024, verifying service of the writ and statement of claim at the registered address of the defendant.

1. The facts relied upon to support the plaintiff's claim are set out in the statement of claim. The following summary of the relevant factual background is derived from the statement of claim, as supported by the plaintiff's affidavit evidence.
2. The defendant operated a business from a premises in Cloverdale, Western Australia identified in the statement of claim (Premises) trading under the name Perth Bullion Company. Its business included engaging in and facilitating transactions in relation to the sale and purchase of bullion products, primarily gold and silver bullion. It also provided secure storage facilities to third parties by way of safety deposit boxes, locked boxes and custom safes contained within a vault or safe located at the Premises (Vault).
3. The company extract attached to the plaintiff's affidavit confirms that, since 6 July 2016, Benjamin Welsh has been, and remains, the sole director, secretary and shareholder of the defendant.[10]
4. On about 3 December 2020, the plaintiff met with Benjamin Welsh at the Premises and entered into the Licence Agreement under which the defendant agreed to lease, licence or otherwise make available to the plaintiff the exclusive use of the Safety Deposit Box located within the Vault.
5. The relevant terms of the Licence Agreement are set out in the statement of claim[11] and, in summary, provide that:[12]

(a) On payment by the plaintiff to the defendant of an annual licence fee and an annual insurance fee, the defendant is to provide the plaintiff with the use of and access to the Safety Deposit Box allocated to him.

(b) The plaintiff is required to make an appointment in the manner prescribed in the Licence Agreement (by telephone or email) to access the Safety Deposit Box.

(c) The defendant will take all reasonable steps to ensure that only the plaintiff or the plaintiff's nominee are provided access to the Safety Deposit Box.

(d) The defendant is to exercise due care and diligence in safeguarding the Vault and its contents.

1. On 3 December 2020, the defendant issued a tax invoice to the plaintiff in respect of the annual licence and insurance fees, which the plaintiff paid, and the plaintiff was provided with the use of the Safety Deposit Box under the terms of the Licence Agreement. He was also given a custom key (with key number 23), which he still holds. The plaintiff deposes that he believes the defendant holds a second key for the Safety Deposit Box as well as a master key.[13]

• 21 Following the plaintiff and defendant entering into the Licence Agreement, the plaintiff placed various gold and silver bullion, as well as silver coins and chains, into the Safety Deposit Box, as set out in the statement of claim and in the plaintiff's affidavit.[14] From about August 2021, the plaintiff and defendant also entered into agreements relating to the exchange of gold bullion for silver bullion of equivalent value.[15]

1. On about 9 May 2023, the plaintiff telephoned Mr Welsh to make an appointment to access the Safety Deposit Box to collect items he had deposited and stored in it. Mr Welsh said he would call the plaintiff to advise a suitable time but did not do so.[16]
2. On about 12 May 2023, the plaintiff attended the Premises. He observed they were no longer occupied by the defendant. In his affidavit, the plaintiff deposes to having been in communication with the landlord of the Premises, Mr Welsh's brother, Robin Welsh, who operates an unrelated business from the neighbouring premises.[17]

• 24 Since that time, despite attempts to contact the defendant (through Benjamin Welsh) to access the Safety Deposit Box and arrange collection of the items in it, the plaintiff has received no response from the defendant and has not been provided access to the Safety Deposit Box. This includes requests made directly by the plaintiff by email to the defendant and letters sent by the plaintiff's solicitors to the defendant at its registered address on 22 August 2023 and 13 November 2023.[18]

1. The plaintiff claims that the defendant is in breach of the terms of the Licence Agreement by failing to provide the plaintiff with access to the Safety Deposit Box and seeks orders requiring the defendant to take all necessary steps to provide the plaintiff with access to it so he may recover the bullion deposited and stored in it.
2. The plaintiff recognises that any orders the court may make requiring all necessary steps to be taken to provide him with access to the Safety Deposit Box must be directed to the defendant. It is submitted on his behalf that although the defendant no longer occupies the Premises, the landlord, Robin Welsh, has indicated a willingness to assist with facilitating access to the Premises and to the Safety Deposit Box, if orders are made by the court requiring the defendant to provide such access to the plaintiff.[19]

Compliance with procedural requirements under O 13 r 9

1. I am satisfied on the evidence filed by the plaintiff that the relevant procedural requirements have been complied with. The defendant has been served with the writ and the statement of claim.[20] The writ has been indorsed in accordance with O 9 r 1(4).[21]
2. At each of the hearings of the motion for judgment in default of appearance on 4 and 9 April 2024, counsel for the plaintiff tendered a certificate signed by the proper officer as required under RSC O 13 r 9(2)(b) certifying that no appearance has been entered by the defendant.[22]
3. The procedural requirements having been satisfied, I am empowered to consider the exercise of the discretion to grant default judgment for the relief sought.

1. The plaintiff seeks a mandatory injunction, that is an injunction which directly orders the defendant to do something. There are two kinds of mandatory injunctions: restorative and enforcing.[23]
2. The more common restorative function compels a person to repair the consequences of some wrongful act they have done. An enforcing mandatory injunction instead compels the person to whom it is addressed to do something active which he or she has promised for valuable consideration to do. This second type of mandatory injunction approximates specific performance of a contract. However, while 'specific performance' is usually reserved for an order enforcing the whole of an agreement, a mandatory injunction may be ordered to compel performance of a single positive contractual obligation.[24]
3. This court has jurisdiction to grant injunctive relief which is analogous to specific performance of a contractual right.[25] The Court of Appeal set out the principles applicable to the grant of final injunctive relief in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2],[26] which include, as is well established:

(a) a plaintiff is not entitled in equity to an injunction simply because the plaintiff's legal rights are breached or are in jeopardy;[27] and

(b) injunctive relief will ordinarily only be granted in equity's auxiliary jurisdiction, if damages are not ascertainable or otherwise not an adequate remedy.[28]

1. I am satisfied on the evidence adduced that the plaintiff is entitled to access the Safety Deposit Box under the terms of the Licence Agreement. The plaintiff has made payments to the defendant of the annual licence and insurance fees. He has sought to gain access to the Safety Deposit Box by his attempts to contact the defendant and to make an appointment to do so. He has received no response and the defendant has not provided access to the Safety Deposit Box, in breach of the terms of the Licence Agreement.
2. The relief sought by the plaintiff is an order compelling the defendant to do something which it has promised to do for valuable consideration. That is, to provide the plaintiff with access to the Safety Deposit Box so he can, in turn, access the property he has deposited in it.
3. I accept the plaintiff's submission to the effect that, without accessing the contents of the Safety Deposit Box, the plaintiff is unable to assess possible damages and ascertain whether any damage has been suffered.
4. Whether any damage has been suffered or is ascertainable is not known. Until the plaintiff has access to the Safety Deposit Box, it is not possible to determine whether the appropriate damages are simply for breach of contract because the plaintiff has been denied access to the Safety Deposit Box, or whether he has a claim for damages for the possible loss of the contents of the Safety Deposit Box.
5. The Licence Agreement is neither a contract for the provision of professional services, nor for any other class of contract of which courts have shown reluctance to order relief approximate to specific performance. This is not a situation which would involve or require continued supervision of the court if a mandatory order is made to compel the defendant to do what is sought.
6. In the circumstances, I consider it would be just to enforce the defendant's contractual obligation to provide the plaintiff with access to the Safety Deposit Box, so as to place the plaintiff in the legal position he bargained for and to ascertain if his bullion is where he left it for safe keeping.
7. It is important that the language used in an order compelling a party to do something is completely unambiguous, so as to place the defendant in a position where it knows exactly what it is obliged to do.[29] This is because of the penal consequences that follow if it is breached.[30] While it may be impossible to specify every detail of the obligations that an injunction imposes upon a party, it must not employ such general language as to leave the defendant at liberty to indulge in 'reprehensible conduct'.[31]
8. The plaintiff has filed an amended minute of proposed orders which frame the orders for injunctive relief in terms which provide a time by which the defendant is to take all necessary steps to provide access to the plaintiff. It is common for a party to be directed to take 'all steps necessary' to bring about a certain result.
9. The orders have been refined to make clear that the Safety Deposit Box is that leased, licenced or otherwise made available to the plaintiff by the defendant under the terms of the Licence Agreement.
10. In the circumstances, I am satisfied it is appropriate to exercise my discretion to grant the final relief sought in the writ and in the motion for judgment in default of appearance and to make an order requiring the defendant to do all things necessary to provide the plaintiff access to the Safety Deposit Box.

1. For these reasons, I granted judgment in default of appearance to the plaintiff and, on 12 April 2024, I made orders as follows:
   1. Judgment in default of appearance is entered for the plaintiff against the defendant.
   2. The Safety Deposit Box referred to in order 3 means the safety deposit box leased, licenced or otherwise made available to the plaintiff by the defendant pursuant to an agreement entered into between those parties on or around 3 December 2020 and which is or was located at 180 Wright Street, Cloverdale WA 6105, and for which the plaintiff was issued a key marked "23".
   3. By 26 April 2024, the defendant must take all necessary steps to provide the plaintiff or his nominee access to the Safety Deposit Box at a time reasonably convenient to the plaintiff, for the purposes of inspecting and removing the items belonging to the plaintiff which are stored in the Safety Deposit Box.
   4. The parties have liberty to apply.
   5. The defendant pay the plaintiff's costs of the action and of the notice of motion for judgment in default of appearance, to be taxed if not agreed.
2. The orders also included a penal notice in relation to order 3 directed to the defendant and stated that any other person who knows of the order and does anything which helps or permits the defendant to breach its terms may be punished, which may include imprisonment for a natural person.
3. Notice was also included to the defendant of its right to apply under RSC O 13 r 14 for an order setting aside or varying the judgment and for an order suspending the enforcement of all or any part of the judgment under s 15 of the Civil Judgments Enforcement Act 2004 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] David Allan Collison as administrator of the estate of Diane Carol Collison v Collison [2024] WASC 87 [12] - [17], [19] - [21].

[7] City of Stirling v Deuschen [2011] WASC 126 [48] (Martin J); Faithfull v Woodley [1889] UKLawRpCh 192; (1890) 43 Ch D 287, 289.

[8] Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513 [42]; Phonographic Performance Ltd v Maitra [1998] EWCA Civ 137; [1998] 2 All ER 638, 644.

[9] City of Stirling v Deuschen [2011] WASC 126 [49] - [50], referring to Phonographic Performance Ltd v Maitra [1998] EWCA Civ 137; [1998] 2 All ER 638, 644.

[10] Affidavit of Eugene Brislan sworn 30 January 2024 (Brislan Affidavit) [6], 'EB-1'.

[12] Brislan Affidavit [10], 'EB-2', Licence Agreement cl 6, cl 7, cl 9, cl 12, cl 22.

[13] Statement of Claim [6] - [8]; Brislan Affidavit [13] - [14], 'EB-4'.

[14] Statement of Claim [9] - [10]; Brislan Affidavit [16] - [18].

[15] Statement of Claim [11] - [13]; Brislan Affidavit [21] - [26].

[16] Statement of Claim [14]; Brislan Affidavit [34] - [35].

[17] Brislan Affidavit [6], [37] - [39].

[18] Statement of Claim [16] - [17]; Brislan Affidavit [40] - [43], [46] - [47].

[19] Brislan Affidavit [44] - [45], 'EB-10'. Plaintiff's oral submissions 4 April 2024, ts 4.

[20] Affidavits of Charmaine Ruth James and Faegh Kazemi affirmed on 15 February 2024.

[21] Affidavit of Charmaine Ruth James [8], 'CRJ4'.

[23] See Heydon J D, Leeming M J and Turner P G, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (5th ed, 2015) (Equity: Doctrines and Remedies) [21-440] ‑ [21-445].

[24] See Equity: Doctrines and Remedies [21-445] and the authorities referred to.

[25] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [132] ‑ [134] (Buss P, Murphy JA, Beech J) (Sino Iron v Mineralogy [No 2]), and the authorities referred to.

[26] Sino Iron v Mineralogy [No 2] [126] - [129], and the authorities referred to.

[27] Sino Iron v Mineralogy [No 2] [128], referring to Proctor v Bailey [1889] UKLawRpCh 138; (1889) 42 Ch D 390, 398; Lawrence v Fenn Tigers Ltd [2014] UKSC 13; [2014] AC 822 [150] - [160]; Equity: Doctrines and Remedies [21-040].

[28] Sino Iron v Mineralogy [No 2] [128], referring to Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 600 [11]. See also Sino Iron v Mineralogy [No 2] [134] - [137].

[29] Redlands Bricks Ltd v Morris [1970] AC 652; [1969] 2 All ER 576, 580.

[30] See Attorney-General v Punch [2002] EWCA Civ 1641; [2003] 1 AC 1046; [2003] 1 All ER 289 [111], citing Kelso School Board v Hunter (1874) 2 R 228, 230.

[31] Maggbury Pty Ltd v Hafele Aust Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 [104].