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[2026] NSWSC 1274
General information, not legal advice.
Supreme Court of NSW
2026-10-15
Williams J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Langway Pty Ltd v Bulk Resources Management Pty Ltd [2026] NSWSC 1274
Hearing dates: On the papers
Date of orders: 15 October 2026
Decision date: 15 October 2026
Jurisdiction: Equity - Real Property List
Before: Williams J
Decision: See [19] below
Catchwords: CIVIL PROCEDURE — Default judgment — Plaintiff’s motion for default judgment against second defendant — Whether affidavit in support complies with r 16.6(2) of the Uniform Civil Procedure Rules 2005 (NSW) — Whether the plaintiff appears to be entitled to the default judgment sought against the second defendant on its statement of claim — Whether to entry of default judgment would occasion injustice — Motion dismissed
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 14.26, 16.2, 16.3, 16.6, 16.10
Cases Cited: Brady v Brady [2025] NSWSC 217
Wily v King [2010] NSWSC 352
Category: Procedural rulings
Parties: Langway Pty Ltd ACN 001 486 924 (Plaintiff)
Bulk Resources Management Pty Ltd ACN 624 120 743 (First Defendant)
Allen Romel (Second Defendant)
Michael Menon (Third Defendant)
Representation: Counsel:
Not applicable.
Solicitors:
Hunter Lawyers (Plaintiff)
Duffy Law Group (Third Defendant)
File Number(s): 2025/486026
Publication restriction: N/A
By notice of motion filed on 14 September 2026, the plaintiff seeks default judgment against the second defendant in respect of liquidated components of its claim in the amount of $5,332,374.79, and in respect of unliquidated components of its claim in an amount to be assessed.
In support of the notice of motion, the plaintiff relies on an affidavit of its solicitor Mr Vincent Parisi sworn on 27 August 2026 and a further affidavit of Mr Parisi sworn on 12 October 2026.
The notice of motion was filed pursuant to leave granted on 11 September 2026. At the plaintiff’s request, an order was made for the motion to be determined on the papers.
I have reviewed the statement of claim, the notice of motion, and Mr Parisi’s two affidavits. The plaintiff did not file any written submissions in support of the motion.
The statement of claim pleads that the plaintiff was the registered proprietor of land located at 1725-1742 Elizabeth Drive, Badgerys Creek, New South Wales, at all material times (the Land). The plaintiff executed leases of parts of the Land known as “LA3” and “LA4” to the first defendant (the First Lease and Second Lease respectively). Each of the First Lease and the Second Lease was for a term of four years and eleven months commencing on 27 August 2018.
The plaintiff pleads that the second and third defendants were parties to the First Lease and the Second Lease, and that each of them agreed to guarantee to the plaintiff the first defendant’s performance of its obligations under the First Lease and the Second Lease and agreed to pay any money owed by the first defendant to the plaintiff in respect of any breach by the first defendant of its obligations under the First Lease and the Second Lease.
The plaintiff pleads that the first defendant’s obligations under each of the First Lease and the Second Lease included:
an obligation to pay rent monthly in advance in a specified sum per annum for each year of the term of the Lease (defined in the statement of claim as the Rent Obligation);
an obligation to refrain from using the leased premises for any purpose other than sandstone crushing, storage and supply of sandstone (defined in the statement of claim as the Permitted Use) and to obtain all licences, consents or approvals required by reason of that Permitted Use and abide by the terms of those licences, consents or approvals (defined in the statement of claim as the Permitted Use Obligation); and
obligations to yield up the leased premises in good repair, to remove rubbish promptly, to keep the leased premises clean, and to make good the leased premises at the conclusion of the Lease (defined in the statement of claim as the Make Good Obligation).
The plaintiff pleads that the Rent Obligation, the Permitted Use Obligation and the Make Good Obligation were essential terms of the First Lease and the Second Lease, and that the First Lease and Second Lease each included a covenant by the first defendant to compensate the plaintiff in respect of the breach of any essential term of the lease (defined in the statement of claim as the Compensation Covenant).
In respect of each of the First and Second Leases, the plaintiff pleads that the first defendant breached the Rent Obligation and, in breach of the Compensation Covenant, failed to compensate the plaintiff in respect of that breach. It is pleaded that the plaintiff thereby suffered loss, being arrears of rent and interest. The statement of claim does not quantify the amount of that alleged loss.
In respect of each of the First and Second Leases, the plaintiff further pleads that the first defendant breached the Permitted Use Obligation, and breached the Make Good Obligation upon being required to vacate the leased premises in about June 2020 as a result of the breach of the Permitted Use Obligation. It is pleaded that, in breach of the Compensation Covenant, the first defendant failed to compensate the plaintiff for loss suffered as a result of the breaches of the Permitted Use Obligation and the Make Good Obligation, being clean-up costs, loss of rent or an opportunity to rent the leased premises for an unspecified period of time after the first defendant vacated the premises, and costs and expenses including legal fees. The statement of claim does not quantify the alleged losses. Given that the plaintiff claims damages for a loss of opportunity to rent the leased premises from the period after the first defendant was required to vacate them for breach of the Permitted Use Obligation, I infer that the plaintiff’s case is that each of the First and Second Leases was terminated at the time that the first defendant was required to vacate the premises in about June 2020.
In respect of each of the First and Second Leases, it is pleaded that the plaintiff demanded the unpaid rental arrears from the second defendant on 30 June 2020. It is not pleaded that the plaintiff claimed or demanded an amount of compensation in respect of the other alleged losses that it claims to have suffered as a result of the first defendant’s alleged breaches of the Permitted Use Obligation and the Make Good Obligation. It is nevertheless pleaded that, in breach of terms of his guarantee forming part of each of the First and Second Leases, the second defendant failed to compensate the plaintiff for the first defendant’s breaches of the First and Second Leases, as a result of which the plaintiff suffered all of the losses referred to above. To the extent that those alleged losses comprise the unspecified amount of alleged rental arrears and interest, the plaintiff characterises its claim against the second defendant as a liquidated claim. To the extent that those losses comprise the unquantified amount of clean-up costs, loss of rent or an opportunity to rent the leased premises for an unspecified period of time after the first defendant vacated the premises, and costs and expenses, the plaintiff characterises its claim against the second defendant as an unliquidated claim.
Mr Parisi’s affidavit sworn on 27 August 2026 annexes an affidavit of Mr Rodney Finn, licensed commercial agent, which establishes that the statement of claim was served on the second defendant personally on 5 February 2026.
The second defendant has not filed a defence. Mr Parisi has given evidence that the second defendant has not made any payments to the plaintiff since the filing and service of the statement of claim. The second defendant is therefore in default for the purpose of Part 16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). [1]
The Court may give such judgment against a defendant in default as the plaintiff appears to be entitled to on its statement of claim. [2] The weight of authority favours the view that, in circumstances where a defendant has failed to file a defence to the statement of claim, the factual allegations pleaded in the statement of claim are taken to have been admitted. [3] The Court nevertheless has a discretion whether or not to enter default judgment, and is obliged to satisfy itself that the entry of default judgment will not cause injustice to the defendant in default. [4]
The plaintiff is not entitled to default judgment against the second defendant on its liquidated claim in the amount set out in its notice of motion, or in any amount. Mr Parisi’s affidavits do not comply with the requirement of r 16.6(2) to state the amount due to the plaintiff. Mr Parisi merely refers to a spreadsheet annexed to his affidavit, which he describes inconsistently as: (1) a document that he is instructed represents the plaintiff’s record of rent payments made and not made over the term of the First and Second Leases; and (2) a document prepared by the plaintiff’s accountant at his request. The source of the information used to make the calculation set out in the spreadsheet is not identified. Moreover, the calculations cover the whole of the four year and eleven month term of each of the First and Second Leases, notwithstanding that the plaintiff pleads that the first defendant was required to vacate each of the premises in about June 2020 for breach of the Permitted Use Obligation, which I understand as a plea that the plaintiff terminated each of the First and Second Leases in June 2020 as I have explained above.
Even if those features of Mr Parisi’s evidence did not amount to non-compliance with r 16.6(2), the plaintiff would not be entitled to the default judgment sought on its liquidated claim because the second defendant’s failure to file a defence cannot be treated as an admission that the first defendant was obliged to comply with the Rent Obligation after June 2020 or that the second defendant is liable as guarantor for the first defendant’s alleged non-compliance with the Rent Obligation after June 2020. In any event, it would be unjust to the second defendant to enter default judgment against him in respect of an amount not quantified in the statement of claim served on him which the plaintiff has calculated on the basis that the First and Second Leases remained on foot for four years and eleven months in circumstances where the statement of claim served on him suggests that each of those Leases were terminated in about June 2020.
The plaintiff is not entitled to default judgment for an amount to be assessed in respect of its unliquidated claim because it is not pleaded that the plaintiff made a claim for an amount of compensation from the second defendant in respect of the plaintiff’s alleged losses resulting from the first defendant’s alleged breaches of the Permitted Use Obligation and the Make Good Obligation. Nor is it pleaded that the second defendant’s alleged liability in that respect arose without such a claim being made or notified to the second defendant. As a matter of common sense, the second defendant could not comply with his alleged obligation to compensate the plaintiff for any breach by the first defendant of its obligations under the Lease without the plaintiff at least notifying the second defendant of the first defendant’s breach, the resulting loss, and the amount of compensation claimed. Even the statement of claim does not quantify the amount of compensation that the plaintiff claims the second defendant was obliged to pay in order to discharge his alleged obligation to compensate the plaintiff for the first defendant’s alleged breaches of the Permitted Use Obligation and the Make Good Obligation.
Even if those pleading problems were rectified, I would decline to enter default judgment against the second defendant on the plaintiff’s unliquidated claims in an amount to be assessed by reason of the confusion arising from the overlap between the plaintiff’s liquidated claim for rental arrears and its unliquidated claim for loss of rent or loss of opportunity to rent the leased premises in the period after June 2020.
For all of those reasons, the orders of the Court are as follows:
Order that the plaintiff’s notice of motion filed on 14 September 2026 is dismissed.
Order that the plaintiff is to pay its own costs of that notice of motion.
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UCPR, r 16.2.
UCPR, r 16.3 and r 16.10.
UCPR, r 14.26; Brady v Brady [2025] NSWSC 217 at [69] (Pike J) and the authorities there referred to.
Wily v King [2010] NSWSC 352 at [16]-[17] (Barrett J, as his Honour then was) and the authorities there referred to.
Langway Pty Ltd
Bulk Resources Management Pty Ltd