Kim v Wang [2025] FCA 1244

1. All reasonable endeavours were made by the applicant to serve those orders on Mr Wang, although there is no indication that they were successful, and the likelihood is that they did not come to his attention.
2. The applicant then filed an interlocutory application seeking default judgment against Mr Wang, and the assessment of damages, for the group members in respect of whom the points of claim had been filed.
3. Once more, all reasonable endeavours were made by the applicant to serve that application, and the supporting evidence, on Mr Wang. Again, however, it seems unlikely that Mr Wang in fact received notice of the application.
4. The application first came on for hearing on 18 August 2025. As the material relied upon in support of the application was scrutinised on that occasion, it became apparent that some further work needed to be done in order to substantiate the judgment sums claimed. I thus adjourned the hearing, which was ultimately resumed on 19 September 2025.

1. Rule 5.23(2) of the Federal Court Rules 2011 (Cth) relevantly provides that:

(2) If a respondent is in default, an applicant may apply to the Court for:

...

(c) if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings - an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or

(d) an order giving judgment against the respondent for damages to be assessed, or any other order;

1. Relatedly, r 5.22 provides that a party is in default if the party fails to:

(a) do an act required to be done, or to do an act in the time required, by these Rules; or

(b) comply with an order of the Court; or

(c) attend a hearing in the proceeding; or

(d) prosecute or defend the proceeding with due diligence.

1. The principles which govern the exercise of the discretion to enter a default judgment have been summarised in many cases, one helpful recent example being that of EV20 Consulting Group Pty Ltd v Paperless Warehousing Pty Ltd [2025] FCA 328 at [14], where Burley J said:

The principles relevant to the exercise of discretion under FCR r 5.23 may be summarised as follows:

(1) the power invoked by the Applicants is discretionary, it should be exercised cautiously;

(2) the discretion to enter a default judgment is enlivened when an applicant or cross-claimant applies to the Court for such an order and where a respondent is in default;

(3) the rule must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable, by even the most conscientious parties and their lawyers, and of the likely serious consequences to an applicant of staying or dismissing a claim;

(4) cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to cooperate with the Court and the other party or parties in having the matter ready for trial within an acceptable period provide an example where the exercise of the discretion may be appropriate;

(5) the requirement imposed by FCR r 5.23 is not that an applicant prove by way of evidence the claim sought to be advanced; the requirement is that the Court needs to be satisfied on the face of the statement of claim that the applicant is entitled to the relief claimed. In this regard, FCR r 5.23 will be met upon the Court being satisfied that relief could be granted on the face of the pleading;

(6) in addition to the facts alleged in the statement of claim, the Court may permit recourse to further limited evidence but may not admit evidence that would alter the case as pleaded;

see Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [20]- [25] (Flick J); Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 at [13]- [14] (Yates J); Secretary, Department of Health v Evolution Supplements Australia Pty Ltd [2021] FCA 74 at [10]- [15] (Burley J); Hugo Boss AG v Hardge [2024] FCA 1325 at [20] (Neskovcin J).

1. Furthermore, the discretion to order default judgment is unfettered, and necessarily informed by the facts and circumstances of each case, including the history of non-compliance, whether the relevant defaults were intentional, and if those defaults are likely to be remedied. As Bromwich J observed in Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4) [2016] FCA 867 at [54]:

The discretion conferred by r 5.23(2)(c) (and also r 15.3(f)) is unfettered, being conditioned on failure to do any of the things identified in r 5.22(a) to (d). There is no requirement of intentional default or contumelious conduct, although those aspects, if present, will be important. Nor is there any requirement within the text that delay or other impugned conduct was inordinate or inexcusable, although again that is likely to be a significant matter: see Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 520; (1990) 27 FCR 388 at 395-396. Nor is there any requirement of prejudice to the other party, although that again is also likely to be significant. It should be remembered that in almost every case delay adversely affects the quality of a trial and is an additional burden upon the parties: again, see Lenijamar at 395-396; see also Yeo v Damos Earthmoving Pty Ltd, Re Beachwood Developments Pty Ltd (in liq) [2011] FCA 1129 at [16].

1. Mr Wang is plainly in default.
2. Having participated in and actively defended the proceedings at all times up until the refusal of his application for special leave to appeal, there is no reason to doubt that he is aware of the proceedings. Indeed, Mr Wang should be taken to be aware that the individual claims of group members may have been determined in these proceedings on remitter from the Full Court. In Kim v Wang (No 2), Lee and Jackman JJ said, at a time when Mr Wang was still participating in the proceedings, (at [6]-[7]):

As to the claims of group members, Mr Wang suggests that because no aggregate damages were sought and orders pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth) (FCA Act) have been made, individual claims by group members "can be brought by those individual group members in whatever future forum is appropriate".

The terms and structure of Pt IVA of the FCA Act accommodate directions being made for the resolution of individual group member claims, following an initial trial, in the context of an extant class action. Any orders and directions relevant to the determination of the individual claims of the group members, including any issues as to declassing, should also be left to the new trial judge.

1. Despite that knowledge, Mr Wang has not participated in the proceedings in any way since his lawyers filed a notice of ceasing to act in December 2023. He has not provided any contact details to enable either the applicant or the Court to contact him. He has not appeared at any hearing (whether case management or interlocutory application) since that date. Nor has he complied with the Court's order to file a defence to the consolidated points of claim by 30 June 2025. Generally, I think it is fair to say that Mr Wang has, since December 2023, failed to defend the proceedings with due diligence.
2. In those circumstances, it is unarguable that Mr Wang is "in default" within the meaning of r 5.22.

Should the discretion to order default judgment be exercised?

1. The overwhelming inference is that Mr Wang's defaults are deliberate, and reflect a considered decision on his part to disengage from the proceedings. I thus find that Mr Wang has no intention to participate in these proceedings.
2. Every reasonable effort has been made to locate Mr Wang, and to draw to his attention the orders of the Court with which he was required to comply, and the fact that an application for summary judgment would be made.
3. There is thus no basis upon which I might infer that Mr Wang's present default is temporary.
4. In those circumstances, subject to being persuaded that group members are entitled to the relief sought, I am persuaded that it is appropriate to order that judgment be entered against Mr Wang for damages for group members to be assessed pursuant to r 5.23(2)(d) of the Federal Court Rules.

Entitlement to relief and assessment of damages

1. The answers to common questions given by the Full Court in Kim v Wang establish the existence of each element of the group members' causes of action, save for causation and loss. Those remaining elements plainly raise individual issues in relation to each group member.
2. The consolidated points of claim filed by the applicant on 2 June 2025 alleges, in respect of each relevant group member:

(a) that they paid for an investment in one of the corporate respondents;

(b) that they relied on the representations that were found to have been made that those investments were legitimate; and

(c) the fact that they have suffered loss and damage as a result.

1. The factual matters pleaded are taken to have been admitted: EV20 Consulting Group at [14]; Chamberlain Group, Inc v Giant Alarm System Co Ltd (No 2) [2019] FCA 1606 at [14]. In this case, the applicant's solicitor also swore an affidavit, in which he deposed, in a detailed way, on information (obtained as instructions from each group member) and belief, to the truth of the allegations contained in the points of claim. The truth of those matters is also supported by the evidence relied upon in support of the quantification of the group members' losses.
2. Insofar as the quantification of the loss suffered by each group member is concerned, evidence was adduced that showed, by reference to bank transaction records provided by each group member, the amount of money that was paid by or on behalf of that group member to one of the corporate respondents. In general, because the corporate respondents were not offering a legitimate investment, the amount of the loss suffered by group members was the amount that they paid. In some cases, however, the corporate respondents had paid a "return" to a group member. In those cases, the amount thus returned was deducted from the amount claimed as a loss by the group member in question.
3. Particular issues that arose included the following:

(a) Some group members claimed to have made purchases in the name of other persons (specifically, the fifth, eleventh, eighteenth, thirty-third, forty-sixth, fiftieth, fifty-first, fifty-fourth, fifty-seventh, sixty-third, sixty-eighth, sixty-ninth, seventy-first, seventy-ninth, and ninety-first group members). I am satisfied, on the basis of the evidence contained in the affidavit sworn by the applicant's solicitor and filed on 17 September 2025, that none of these purchases were intended to be a gift to the named persons, and rather that each group member in this category simply used another person's name (often a family member) to complete the purchase, so as to obtain a referral bonus or for other reasons. In all such cases, any benefit obtained as a result was of no value, and thus need not be brought to account in the calculation of the group member's loss.

(b) Some group members (comprising the seventh, twenty-third, twenty-fifth, twenty-ninth, thirty-second, thirty-third, forty-third, forty-sixth, forty-ninth, fiftieth, fifty-seventh, fifty-ninth, sixty-first, sixty-third, sixty-eighth, seventy-seventh, seventy-eighth, seventy-ninth, eighty-eighth, ninety-first, ninety-third, ninety-fourth, ninety-seventh, one hundredth, one hundred and fifth, one hundred and ninth, one hundred and tenth, one hundred and twelfth, one hundred and fourteenth, one hundred and eighteenth, and one hundred and nineteenth group members) sought to prove their loss by reference to bank transaction records in another person's name. In relation to each such individual, there was evidence that the amount was paid on behalf of, and at the direction of, the group member. I am satisfied that in each such case the loss claimed is loss suffered by the group member concerned.

(c) There were six group members (the eleventh, twelfth, twenty-seventh, forty-fourth, sixty-ninth, and one hundred and eighth group members) who relied upon bank transaction documents being transaction ledgers, rather than a direct record of a particular payment. These ledgers were hand-annotated (based on instructions from the group member concerned) by way of tick-boxes, circles, or highlighting, to show the amount that the group member had paid out in reliance on the corporate respondents' representations, and that he or she had not received repayment or the return of any of those monies.

(d) Finally, the bank transaction records of two group members (the twenty-first and forty-sixth group members) included cash receipts in US dollars which the applicant's solicitor then converted to Korean Won by reference to the rates published by the Bank of Korea applicable at the relevant time. I am satisfied that the figures represent a reliable estimate of the currency conversion, especially considering that the same process had been used, with the consent of Mr Wang, in relation to the applicant's damages at trial at a time when Mr Wang remained an active party to the proceeding.

1. Overall, I was satisfied that the amount of loss claimed by each group member had been proved. I am thus satisfied that judgment should be entered in favour of each individual group member in the amount claimed.

1. It is well-established that if a successful party obtains judgment in foreign currency, then compensation to the plaintiff ordinarily calls for interest to be calculated at the interest rates relevant to that currency: Miliangos v George Frank (Textiles) Ltd (No 2) [1977] QB 489 at 495; Maschinenfabrik Augsburg-Nurenburg Aktiengesellschaft v Altikar Pty Ltd [1984] 3 NSWLR 152 at 154; Swiss Bank Corporation v New South Wales (1993) 33 NSWLR 63 at 64-65; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 4) [2009] FCA 1448 at [8]. That is because, as Giles J observed in Swiss Bank at 64-65:

The reason for the regard to the interest rates relevant to the foreign currency is that the plaintiff's loss through being kept out of its money has come home in that foreign currency. The plaintiff has had to borrow money in the foreign currency to replace the money of which it has been deprived, or has lost the opportunity of earning interest on money in that foreign currency, and in the ordinary course where the plaintiff claims judgment in a foreign currency that is the currency in which it operates and in which it borrows or invests.

1. His Honour went on to observe that it will not always be the case that a claimant's loss will come home in the currency of the judgment. In this case, however, there is no reason to think that the group members' losses have come home in any currency other than Korean Won. It thus follows that it is appropriate, in this case, to award both damages and pre- and post-judgment interest for each group member calculated at the applicable base rate published by the Bank of Korea.

1. The applicant has indicated that, following delivery of this judgment, he will file a further application directed to resolving the proceedings in relation to all remaining group members.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Owens.