KUPANG Investments Pty Ltd v JAGA Securities Pty Ltd

File Number(s): 2024/333669

Publication restriction: No

JUDGMENT

1. I am dealing with a notice of motion filed by the defendants on 24 December 2024. The parties agreed that this motion could be dealt with on the papers.

2. The procedural history is as follows. On 9 September 2024, the plaintiff filed a statement of claim seeking judgment against each of the defendants in the sum of $5,096,804.82 plus interest. The obligation to pay this amount arose from a loan agreement dated 15 April 2020 together with a Deed of Settlement dated 7 January 2022 and a Variation of the Deed of Settlement dated 27 March 2023.

3. No defence was filed. On 27 November 2024, the plaintiff filed a notice of motion for default judgment for a liquidated claim. On 4 December 2024, the court made the following orders:

“Judgment:

JAGA Securities Pty Ltd, First Defendant; Jon Adgemis, Second Defendant; Rose Adgemis, Third Defendant; ADGEMIS HOLDINGS PTY LTD, Fourth Defendant are to pay KUPANG INVESTMENTS PTY LTD, First Plaintiff the sum of $5194404.34 inclusive of costs.”

4. On 24 December 2024, the defendants filed the current notice of motion, to set aside the orders made on 4 December 2024, the default judgment.

5. On 8 May 2025, the court made orders and directions for a timetable for the motion together with the provision of a Court Book. The motion was listed for hearing on 30 July 2025 with an estimate of one day.

6. None of the orders and directions made on 8 May 2025 were complied with by the defendants.

7. Because of the defendants’ non-compliance, the plaintiff listed the matter before the Registrar on 21 July 2025. The plaintiff asked the Registrar to dismiss the motion.

8. Mr Zaki appeared on behalf of the first defendant and said that while he did not oppose dismissal of the motion, he did not have instructions to consent to the dismissal.

9. The Registrar made the following note on the Court portal:

“1) Advice that Second Defendant now has trustee under s188 Bankruptcy Act.

2. Lawyer has no instructions from First Defendant company.

3. Third and Fourth Defendant not engaged in Notice of Motion since listing.

4. Registrar cannot dismiss motion unless by consent given basis for motion.

5. May not need one day hearing on 30 July 2025 and to seek dismissal of Respondents Notice of Motion.”

10. On 25 July 2025 Mr Zaki wrote to the court, and to the plaintiff’s solicitor, stating:

“We are not instructed to consent to or oppose the orders sought by Mr. Sutherland’s client. We are otherwise content for the application for those orders to be determined on the papers.”

11. The only defendant having any continuing interest in the motion is the first defendant. The first defendant has not complied with any of the orders made to progress its motion and bring it to a state in which it might be considered by the court.

12. It is clear from Mr Zaki’s email that the first defendant is no longer taking an interest in its motion. This is the same as a failure to prosecute proceedings with due dispatch enabling dismissal under r. 12.7 of the Uniform Civil Procedure Rules 2005 (NSW).

13. It follows that the motion filed by the first defendant must be dismissed. I make the following orders:

14. The notice of motion filed on 24 December 2024 to set aside the orders dated 4 December 2024 is dismissed.

15. The first defendant is to pay the plaintiff’s costs of the notice of motion.

**********