Master Wealth Control Pty Ltd v RP Data Pty Ltd

Medium Neutral Citation: Master Wealth Control Pty Ltd v RP Data Pty Ltd [2025] NSWSC 943

Hearing dates: 16 July 2025

Date of orders: 16 July 2025

Decision date: 16 July 2025

Jurisdiction: Equity

Before: Meek J

Decision: Orders made striking out the plaintiff’s claim and its defence to the cross-claim. Judgment for the defendant with respect to its cross-claim. Orders sought by the defendant for non-party costs not made.

Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — Discussion of principles relevant to UCPR r 12.7 — Plaintiff’s ex-sole director and shareholder (originally a co-plaintiff) disqualified from managing corporations for five years — Plaintiff yet to appoint a new director — No relevant person to pursue the proceedings on behalf of the plaintiff — Plaintiff’s claim struck out and dismissed
CIVIL PROCEDURE — Pleadings — Former Supreme Court Rules provision that a prior pleading stands as the answer to an amended pleading — Provision not incorporated into UCPR — Court can nonetheless direct that a prior pleading stands as the answer to an amended pleading as part of case management
CIVIL PROCEDURE — Pleadings — Motion to strike out the plaintiff’s defence and give judgment for cross-claimant — Plaintiff originally filed a defence, then consented to filing of further amended cross-claim but did not file response — Discussion of principles relevant to UCPR rr 16.3 and 16.6 — Defence struck out — Judgment for the cross-claimant
COSTS — Party/Party — Defendant seeking orders against non-party (plaintiff’s current sole shareholder and ex-sole director) — Application of criteria in FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 — Orders not made

Legislation Cited: Bankruptcy Act 1996 (Cth)
Civil Procedure Act 2005 (NW)
Competition and Consumer Act 2010 (Cth)
Court Procedure Rules 2006 (ACT)
District Court Rules 1973 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Al-Shennag v Woodcock [2013] NSWSC 696
Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 7) [2010] FCA 921
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australian Competition and Consumer Commission v Master Wealth Control Pty Ltd [2024] FCA 344
Australian Competition and Consumer Commission v Master Wealth Control Pty Ltd (Penalty) [2024] FCA 795
Central Queensland Development Corp Pty Ltd v Sunstruct Pty Ltd (2015) 231 FCR 17; [2015] FCAFC 63
Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; [2007] HCA 56
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340
Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334
Knight v FP Special assets Ltd (1992) 174 CLR 178; [1992] HCA 28
Macdonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612; [2007] NSWCA 304
May v Christodoulou (2011) 80 NSWLR 462; [2011] NSWCA 75
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Saade v Rahme [2024] NSWSC 645
Templar v Britton (No 2) [2014] NSWSC 587
Westpac Banking Corporation Ltd v Kay (No 3) [2020] NSWSC 206
Wily v King [2010] NSWSC 352

Texts Cited: Dal Pont, GE, The Law of Costs (5th ed, 2021, LexisNexis)

Category: Principal judgment

Parties: Master Wealth Control Pty Ltd – First Plaintiff / Cross-Defendant
D Grubisa – Previous Second Plaintiff
RP Data – Defendant / Cross-Claimant

Representation: Counsel:
JP Hastie – Defendant / Cross-Claimant
Solicitors:
Mills Oakley – Defendant / Cross-Claimant

File Number(s): 2022/00103308

ex tempore JUDGMENT (revised)

1. HIS HONOUR: On 29 March 2022, the Australian Securities and Investments Commission (ASIC) banned Dominique Eva Grubisa (Ms Grubisa) from engaging in credit activities, providing financial services, performing any function in a credit entity or controlling a credit entity or financial services business for four years (b****an).

2. Ms Grubisa was the sole director of Master Wealth Control Pty Ltd (MWC), the first plaintiff. MWC had certain licence agreements with RP Data Pty Ltd (RP Data or RP****D, also trading as CoreLogic), the defendant.

3. On 5 April 2022, ASIC published a media release regarding the ban. Within days, the defendant purported to terminate the licence agreements.

4. That termination prompted an urgent application to this Court and has given rise to a tumultuous period culminating in Federal Court orders disqualifying Ms Grubisa from managing corporations for a period of five years and imposing a pecuniary penalty on MWC of $5 million for contraventions of the Australian Consumer Law (ACL). It has also led to the bankruptcy of Ms Grubisa and an application by the defendant to bring these proceedings to an end.

5. The disqualification in 2024 is a profound fall from grace for Ms Grubisa who, 30 years earlier, had been admitted to practice as a solicitor of this Court, having graduated from the University of Sydney with a Bachelor of Arts (Honours) and Bachelor of Laws.

Issues

6. The application for hearing is a notice of motion by the defendant filed on 9 April 2025 (motion) relevantly seeking:

7. an order for dismissal of MWC’s claim for lack of prosecution pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and/or s 61(3) of the Civil Procedure Act 2005 (NSW) (CPA) (want of due despatch dismissal claim);

8. an order striking out MWC’s defence to the amended statement of cross-claim filed on 23 January 2024 and entry of judgment in favour of CoreLogic for the sum of $3,087,495.12 or, alternatively, $98,730.12 and interest (strikeout and judgment claim); and

9. an order pursuant to s 98(1) of the CPA for Ms Grubisa to pay CoreLogic’s costs of the proceedings, including the present motion.

10. The issues on the hearing of the motion directly relate to the relief sought, namely whether: (a) MWC’s claim should be dismissed; (b) there should be judgment for CoreLogic on its further amended statement of cross-claim (FASCC); and (c) whether Ms Grubisa who is no longer a party should be ordered to pay the costs of the proceedings as a separate costs order to the costs order also sought against MWC.

11. In the circumstances I will recite below, the motion is the practical culmination of three years of litigation between the parties which has now resulted in MWC and Ms Grubisa not appearing on the hearing.

12. Mr Hastie of counsel appeared for CoreLogic and has provided submissions on 13 May 2025 (initial submissions) and 11 July 2025 (supplementary submissions). I have been assisted by Mr Hastie on the application.

13. CoreLogic relied upon affidavits from Rebecca Messenger (Leader Accounts Receivable), Sarah Edwards (Senior Leader – Operations), Morgan-Lee Walford, and Callum James Aitken (both solicitors in the employ of CoreLogic’s lawyers). In addition, there is a bundle of documents that have been tendered which include certain of the annexures and exhibits to the affidavits.

14. Ms Grubisa affirmed an affidavit on 15 April 2025 expressly stated as being in response to the motion (Ms Grubisa**’**s affidavit). This was read upon by Mr Hastie.

15. In an affidavit sworn this morning, Mr Aitken deposed to serving the motion and the affidavit of Ms Walford dated 7 April 2025 on the registered office of MWC.

16. Having regard to the above-mentioned evidence, certain parts of which I will expand on further below, I am satisfied that MWC and Ms Grubisa are aware of the hearing today and have been served with a motion and had an opportunity to contest the motion.

Background

15. MWC was registered on 30 December 2010 and, up until late February/early March 2016, was known as Australian Debt Purchasers Pty Limited (ADP). It relevantly traded as DG Institute. Ms Grubisa, originally the second plaintiff, apart from its sole director was also its sole secretary. Initially she and her husband, Kevin Misha Grubisa, were shareholders, each holding 50 ordinary shares.

16. There are somewhat conflicting ASIC search documents on the court file regarding the shareholding. An ASIC search annexed to the affidavit of Gregory Crocker dated 8 April 2022 suggests that there was a transfer of shareholding by documentation lodged with ASIC (7EAP06380) by which Ms Grubisa and Mr Grubisa’s shares were transferred to DGI Holdings Pty Limited (DGI) on 5 September 2019. A search in the Court Book reveals additional documents affecting the shareholding. It seems that by ASIC document 2E0327334 lodged on 13 March 2014, Ms Grubisa and her husband each held 50% of the shareholding. ASIC document 7ECZ54550 indicates that the shareholding in MWC became held by DGI on 8 October 2024 and document 7EDC07202 indicates that 100% of the shareholding was transferred to Ms Grubisa on 12 November 2024.

17. MWC, according to its claim in the proceedings, offered various property education packages to members of the public including: [1]

(a) “Real Estate Rescue” (RER) which involves buying under market value properties;

(b) “Property Development Program” (PDP) which involves small property developments and subdivisions;

(c) “Flipping Houses Australia” which involves renovating and selling houses; and

(d) “Property Buyers’ Too**lkit” which is for those customers wishing to acquire a property.

18. CoreLogic is said to be a leading provider of property data and analytics in Australian and New Zealand, providing their services and products to thousands of customers and clients, including banking and financial institutions, valuers, real estate agents, property developers and government departments.

19. MWC provided CoreLogic’s data to its clients under a licence agreement entered into between them.

20. An initial licence agreement was entered into on or about 1 September 2013 for a term of 12 months and was at least until 2022 automatically renewed yearly.

Commercial arrangements

21. In Ms Edwards’ affidavit, she sets out background to the various licence agreements and to what are described as product schedules, which were entered into between the parties and referenced in the pleadings.

22. The documentation appears to have been drafted by CoreLogic.

23. Broadly speaking, CoreLogic agreed to provide certain products, product data and services to MWC as a customer under certain conditions.

24. The parties initially entered into a Provider Licence Agreement in September 2013 (licence agreement). Seemingly, subsequent to that, the arrangements between the parties consisted of:

25. General Terms and Conditions (as set out in a Master Licence Agreement);

26. Product and Service Schedules; and

27. Special Condition Schedules.

28. In addition, MWC contends that under the licence agreement, it and any employees or contractors of MWC in the business of debt collection operating under MWC’s credit licence (MWC associates) could access the RP Professional Subscription Service subject to CoreLogic’s online terms and conditions (online terms).

29. Other than the initial licence agreement, the arrangements between the parties included nine relevant documents as follows:

30. a master licence agreement dated 1 November 2014 (2014 MLA);

31. a product schedule for “Property Monitor” dated 5 November 2014;

32. a product schedule for “Blockbrief” dated 23 April 2015;

33. a product schedule for “Cordell Connect” dated 27 September 2016;

34. a product schedule for “Cordell Estimate Platinum – LITE” dated 15 March 2018;

35. a product schedule for “ResiTrends” dated 18 September 2018;

36. a master licence agreement dated 26 September 2018 (2018 MLA) (together with the 2014 MLA, the MLA**’**s);

37. a product schedule for “ResiTrends, Residential Bundle & Investor Bundle” dated 1 October 2018; and

38. a product schedule for “Cordell Estimator Platinum – RENOVATION DATABASE” dated 3 October 2018.

39. The terms of the licence agreement assume particular significance in this case as it gives a foundation for the lodgement of two debt claims made by CoreLogic.

40. It is appropriate to set out certain provisions of the licence agreement including the following:

BACKGROUND

A. RPD is a leading provider of on-line property information and analytic services to Australian and New Zealand property industry professionals, finance industry and consumers.

B. ADP wishes to license RPP’s on-line property information services for its business and for use by ADP Associates who are contracted to work under ADP’s credit license in the collection of debt.

C. The purpose of this license is to set out the terms upon which ADP and the ADP Associates license RPP’s on-line property Information services.

…

2.1 Purpose

The purpose of this Agreement is to describe the manner and extent to which the parties will work together to give effect to the goal of providing ADP and ADP Associates with access to RPP’s property information services for training purposes.

…

3.1 RPD Obligations

RPD agrees to:

(a) provide ADP and ADP Associates with access to its ‘RP Professional’ subscription service on a national basis (including the direct marketing tab feature) available online at http://rpp.rpdata.com on the following terms:

(i) ADP head office and ADP Associates may access RP Professional subject to the terms and conditions reproduced online at http:/lwww.rpdata.com/terms.html (“RPD Terms”);

(ii) each ADP Associate will be charged subscription fees at a rate of $40 (excl. GST) per month for a 12 month maximum user term, invoiced to ADP (pricing valid where ADP has a minimum of 350 Associates); and

(iii) ADP agrees to pay all Victorian government royalties payable by ADP and ADP Associates which at the time of this Agreement is $36,759.44 (ex GST) per annum, invoiced on a monthly basis,

(b) invoice ADP the subscription fees and Victorian government royalties payable by each ADP Associate on a monthly basis; and

(c) renegotiate the ADP Associate fees if the Victorian government royalties are changed during the Term.

3.2 ADP Obligations

ADP acknowledges and agrees:

(a) to procure from all of its Associates a signed Schedule A, in the form set out in Schedule 1, by no later than 31 December 2013;

(b) that all new ADP Associates which are granted access to RP Professional from 1 September 2013 will sign a Schedule A in the form set out in Schedule 1 before they are provided a login by ADP;

(c) to indemnify and keep indemnified RPD for any and all breaches by ADP’s Associates of the RPD Terms, including any loss suffered as a result of lost subscription revenue should a ADP Associate share Its login details with an unauthorised user;

(d) to provide all training and support for ADP Associates that sign up to RP Professional;

(e) to pay to RPO each monthly invoice issued under clause 3.1(iii) with 14 days of receipt;

(f) that RPD will to (sic) conduct periodic audits of head office user and ADP Associate user numbers and use;

(g) to provide RPO with any Schedule A executed by an ADP Associate upon request;

(h) will not provide access to the RP Data Professional product to anyone other than ADP Associates, as defined in Schedule 1 below;

(i) ensure that ADP Associates cannot access RP Professional without having first executed a Schedule A In the form attached in Schedule 1; and

(j) renegotiate the ADP Associate user rate of $40 (excl. GST) if the Victorian government royalties are changed during the Term.

…

7.1 Term

Unless sooner terminated under clause 7.2, this Agreement is effective for a period of 12 months from the Commencement Date (“Initial Tern”), thereafter this Agreement will automatically renew for subsequent 12 month renewal periods (each a “Renewal Term”) unless a party gives the other party notice of its intent to not renew prior to the end of the Initial Tern or any Renewal Term (the Initial Term and any Renewal Term will be referred to collectively as the “Term”).

7.2 Event of Termination

An event of termination under this Agreement occurs if:

(a) either party breaches any of the terms or conditions of this Agreement which, if capable of remedy, is not remedied within 10 Business Days of a notice to remedy issued by the other party;

(b) either party engages in or omits any act which, in the other party’s reasonable opinion, has or could adversely affect the other party’s image, reputation or brand name;

(c) either party goes into liquidation, receivership, administration or has an effective resolution passed for its winding up or in the other party’s opinion, is unable to pay its debts as and when they fall due; or

(d) ADP or any of the ADP Associates commits a breach of the RPD Terms Agreement which, if capable of remedy, is not remedied within 10 Business Days of a notice to remedy issued by RPD.

7.3 Termination

If a party commits an event of termination, the other party may elect to terminate this Agreement immediately by notice in writing.

…

SCHEDULE 1

Part 1 - Definitions

In this Agreement, unless the subject or context is inconsistent, each of the following expressions shall have the meaning assigned to it below:

ADP Associate means an employee or contractor of ADP in the business of debt collection who is operating under ADP’s credit license and excludes real estate professionals, mortgage brokers, financiers, property developers, accountants and all other related professionals who operate a business related to the property industry.

29. The licence agreement is the only relevant document by which the access sharing arrangements were set in place giving rise to the larger debt claim.

30. Each of the 2014 MLA and 2018 MLA deal with certain products but not the sharing of access.

31. The 2014 MLA provided that in the case of any conflict between the general terms and conditions of the products and service schedules, the terms of the products and service schedules would prevail: 2014 MLA cl 2.2.

32. The MLA’s set up general terms and conditions applying to all services and also contained products and services schedules, each comprising a separate agreement applying to particular services and products: e.g. MLA 2014 cll 3.1-3.2.

33. According to Ms Edwards: [2]

Application of Master Licence Agreements

15. The Property Monitor Product Schedule, the Cordell Estimator Lite Product Schedule and the Cordell Renovation Data Base Product Schedule were subject to the general terms and conditions set out in the November 2014 MLA.

16. The Reports Bundle Product Schedule was subject to the general terms and conditions set out in the September 2018 MLA.

Online Terms and Conditions

17. In addition to the terms and conditions under master licence agreements, CoreLogic maintains a website “www.corelogic.com.au” which contains links to terms and conditions, which are updated from time to time. Since the commencement of my employment with CoreLogic, I have had frequent access to CoreLogic’s website.

Procedural history

34. On or about 8 April 2022, CoreLogic informed MWC of its contention that MWC had breached the licence agreement and proposed to terminate the agreement effectively immediately.

35. That day, MWC and Ms Grubisa approached the Equity Duty Judge. They filed a summons seeking urgent relief forestalling the termination of services, along with associated relief including retractions of representations made to MWC clients regarding the termination and restrains on any further such communications.

36. Initially in the proceedings, MWC was represented by Jonathan D’Arcy of DGI Lawyers Pty Limited (although I note there is some evidence showing he is employed by Assure Lawyers). At some later stage, Jim Lyons, a solicitor with Assure Lawyers, took over the conduct of the litigation on behalf of MWC.

37. For reasons which are not entirely clear, Ms Grubisa was named as the second plaintiff to the summons. A temporary injunction was granted and indeed was supported by an undertaking as to damages from Ms Grubisa. The matter was adjourned to 11 April 2022.

38. On 11 April 2022, on a hearing before Slattery J, the injunction was discharged and, pursuant to r 6.29 of the UCPR, Ms Grubisa was removed from the proceedings. The matter was ordered to proceed by way of pleadings. On 5 May 2022, MWC filed a statement of claim. The statement of claim sought a declaration that CoreLogic had wrongfully terminated the licence agreement and a further declaration that it had repudiated the licence agreement. Damages were also sought.

39. On 9 June 2022, CoreLogic filed a defence and separately a cross-claim.

40. On 25 November 2022, the matter was listed before Slattery J. The catalyst for the listing was an issue regarding particulars in respect of both the defence and cross-claim. Notwithstanding that, the parties had apparently agreed on orders resolving that immediate dispute. His Honour was scathing of the representatives of MWC in seeking particulars which he regarded as being a complete waste of time. His Honour urged both sides to adjust their conduct with a view to progressing the case.

41. On 12 December 2022, a defence was filed to the cross-claim.

42. In 2022, at some point not clearly identified on the evidence, the Australian Competition and Consumer Commission (ACCC) commenced proceedings against MWC in the Federal Court seeking a raft of relief but relevantly asserting DGI, in trade or commerce and in connection with the supply or possible supply of services in Australia, engaged in misleading or deceptive conduct from April 2017 to November 2022.

43. On 21 December 2023, in this Court, an amended cross-claim was filed and on 23 January 2024 defence to that amended cross-claim was filed.

On 19 July 2024, Justice Jackman in the Federal Court made orders banning Dominique Grubisa, the sole director of Master Wealth Control Pty Ltd, from being a company director for a period of five years. Master Wealth Control Pty Ltd and Ms Grubisa appealed this decision. The 19 July 2024 orders were stayed pending the outcome of this appeal. The appeal was dismissed by the Full Court of the Federal Court on 20 December 2024.

Pursuant to the timing requirements as set out under Rule 1.61 of the Federal Court Rules, the director banning order is now in effect. While the Federal Court provided a carve-out to allow Ms Grubisa to act as a director for 91 days post the 19 July 2024 order for the limited purpose of complying with certain court orders relating to Master Wealth Control Pty Ltd, this carveout does not extend to the prosecution or defence of unrelated litigation.

As a result, Master Wealth Control Pty Ltd no longer has a director and is therefore unable to continue these proceedings.

It follows that we hold no further instructions in this matter, and that the plaintiff and cross-defendant are unable to proceed to prosecute the claim or defend the cross claim.

53. On 29 January 2025, Ms Walford responded:

Thank you for your email.

Until such time that you have obtained the Court’s leave to withdraw from the record, we are obliged to continue to communicate directly with you.

Master Wealth Control remains an active registered company. Your client cannot simply abandon the proceedings presently on foot.

Accordingly, please confirm your client will consent to judgment for the defendant and cross-claimant including interest and costs.

In the interim, we will take our client’s instructions on the form of judgment it will accept.

54. On the following day, 30 January 2025, Mr Lyons replied in these terms:

Master Wealth Control Pty Ltd is no longer able to provide instructions or participate in these proceedings. As previously outlined, the company is now functionally incapable of prosecuting or defending litigation due to:

1. The Federal Court’s director banning order against its sole director, Dominique Grubisa, which is now in effect.

2. The absence of any appointed alternative director.

3. Its financial position following the Federal Court redress order and pecuniary penalty imposed.

Given these constraints, the company is unable to consent to judgment or take any active steps in these proceedings including seeking the court’s leave to withdraw.

The position remains that Master Wealth Control Pty Ltd is now a dormant entity with no ability to engage further in this litigation and consequently we no longer have any instructions to act.

We will shortly file and serve a Notice of Ceasing to Act.

Your client may seek whatever orders of the court it deems fit and the matter will not be defended.

55. On 7 April 2025, Mr Lyons served a notice of ceasing to act.

56. On 9 April 2025, CoreLogic filed the motion.

57. On 12 May 2025, Ms Grubisa corresponded with the Associate to Brereton J, confirming inter alia that she had been served a complete copy of the notice of motion and supporting affidavit including exhibits, and acknowledged service by email. She made reference to an affidavit that she had earlier filed on 15 May 2025 and maintained that:

58. she is not a party to the proceedings, having been removed as the plaintiff by leave of the Court prior to the matter being pleaded without objection;

59. she had not taken any steps to prolong or obstruct the proceedings; and

60. there is no basis upon which a personal costs order or other adverse order should be made against her personally.

61. On 15 May 2025, Ms Walford emailed the Associate to Brereton J, confirming that the parties had conferred and consented to a number of directions including regarding submissions.

62. On 15 May 2025, Brereton J made orders by consent (including the consent of Ms Grubisa). Ms Grubisa was to file and serve any written submissions to CoreLogic’s motion by 4pm on 26 May 2025 and CoreLogic had until 4 pm on 30 May 2025 to file and serve any reply submissions. The matter was to be listed for directions on 21 May 2025 before the Registrar for allocation of a hearing date.

63. On 21 May 2025, the matter was listed before the Registrar.

64. On 22 May 2025, Ms Walford, again with the consent of Ms Grubisa, corresponded with the Registrar, noting that they were mutually available on 16 July 2025 for hearing of the motion.

65. On 23 May 2025, the Registrar listed the motion for hearing before me on 16 July 2025 and made the usual orders for hearing.

66. On 2 June 2025, Ms Grubisa sent an email to the Equity Registrar which was provided to my Associate as follows:

I write in relation to the above matter.

Please note that Master Wealth Control Pty Ltd has no acting director. As such, the company is unable to appear, instruct solicitors, or take any further part in these proceedings.

I am not a party to the Statement of Claim, and I do not intend to appear in relation to the upcoming hearing of this notice of motion or defend any part of those proceedings. I have lodged a Debtor’s Petition with AFSA on Friday, 30 May 2025, and while a trustee has not yet been formally appointed, I anticipate that Michael Jones of Jones Partners Insolvency & Business Recovery will be appointed in due course.

For the Court’s records, and for the benefit of the Applicant, I ask that any further correspondence or contact in respect of this matter be directed to Mr Jones once appointed.

I have copied in the Applicant’s legal representatives to this email for their information.

64. On 3 June 2025, my Associate listed the matter for pre-trial directions, notifying Ms Grubisa and the legal practitioners for the defendant.

65. Following a request by Ms Walford, an AVL was provided.

66. On 6 June 2025, on the listing for pre-trial directions, Mr Hastie appeared on behalf of CoreLogic. There was no appearance by or on behalf of MWC or Ms Grubisa. I made pre-trial directions.

67. Later on 6 June 2025 (5:21 PM), Mr Yang, a Senior Accountant with Jones Partners, sent an email to Ms Walford, copied to my Associate and to my chambers email, attaching a letter from Michael Gregory Jones advising that he had been appointed as trustee of the bankrupt estate of Ms Grubisa on 4 June 2025.

68. The letter from Mr Jones stated that he was aware of the proceedings and that, as a result of his appointment, Ms Grubisa had no further capacity to act as director of MWC. He further stated that he had no intention at that point of time of continuing with the proceedings. The certificate of appointment of trustee reflected that it had been presented as a consequence of a debtor’s petition.

69. The documentation includes a detailed state of affairs which show that ACCC was a creditor for amounts of $950,000 and $1 million, CoreLogic for an amount of $1 million and Mr Lyons for $200,000. The total for creditors is said to be $3,440,419. It is unclear what the reference is to Ms Grubisa having a debt to CoreLogic of $1 million and Mr Hastie frankly indicated that he could not shed any light on that aspect of the matter. [3]

Claims and defences

70. The statement of claim pleads that the parties entered into the licence agreement and that pursuant to it: [4]

Corelogic agreed to provide MWC and any employees or contractors of MWC in the business of debt collection operating under MWC ‘s credit licence (MWC Associates) with access to its ‘RP Professional’ subscription service on a national basis (including the direct marketing tab feature) on the following terms:

(a) MWC head office and MWC Associates may access RP Professional subject to CoreLogic’s online terms and conditions (Online Terms);

(b) MWC Associates will be charged subscription fees at a rate of $40 (excl. GST) per month for a 12 month maximum user term, invoiced to MWC; and

(c) MWC agrees to pay all Victorian government royalties payable by MWC and MWC Associates per annum, invoiced on a monthly basis.

71. MWC contended that CoreLogic breached the licence agreement when it ceased to provide RP Professional services to MWC, that it wrongfully terminated the licence agreement, and that it repudiated the licence agreement in circumstances where no notice to remedy a breach had been issued. [5] MWC disputed that the ACCC Ban, which had made no allegation of misconduct against MWC, had any effect of potential damage to the image, reputation or brand name of CoreLogic. [6] MWC claimed that by reason of the service withdrawal, it suffered loss by having to engage an alternate service provider, and that it had lost clients, credits and future sales. [7]

72. The defence pleaded that MWC was not authorised to integrate any of its products with CoreLogic’s products and asserted that any integration constituted a breach of various clauses of the agreements. [8]

73. The defence submitted that CoreLogic terminated the licence agreement by exercising its rights under cll 7.2 (a), (b), and (d) of the licence agreement and further referenced other clauses. [9]

74. CoreLogic contended the conduct engaged in which was the subject of ban could adversely affect its image, reputation and brand name within the meaning of cl 7.2B of the licence agreement and accordingly that it was entitled to terminate the licence agreement immediately pursuant to cl 7.3.

75. CoreLogic’s initial cross-claim repeated certain paragraphs of the defence, pleaded certain terms and conditions of the 2014 MLA and 2018 MLA and the online terms. It alleged various breaches by MWC. It contended that MWC had failed to pay for invoices dated 17 January 2022, 16 February 2022, 16 March 2022 and 3 May 2022 totalling $98,730.12. [10] The cross-claim contended that other losses had been suffered and also sought an account of profits.

76. Formally, the current amended defences to the statement of claim presents as a wholesale striking out of the existing defence and re-pleading of a defence. That is not to say the defence is entirely different to the initial defence. However, substantively, it adds allegations that Ms Grubisa was the controlling mind of MWC and an individual which members of the public readily associated with, or are likely to readily associate with, MWC. [11]

77. In substance, CoreLogic contends that it was entitled to terminate the licence agreement because of breaches, including unauthorised integration of CoreLogic’s products, unauthorised use of CoreLogic’s intellectual property and unauthorised access to CoreLogic’s various subscription services.

78. It also asserts that MWC engaged in disreputable conduct in connection with its Real Estate Rescue Program, including for example encouraging students to utilise data from the Family Court list to identify people in financial distress with the intention of purchasing property from those people at an undervalue. [12] Other disreputable conduct in respect of that program licencing has been alleged. It is said that this disreputable conduct damaged CoreLogic’s goodwill and reputation. [13]

(a) unauthorised use by providing access to 393 MWC associates, constituting a breach of cll 3.2(h) of the licence agreement, A3.1 and A4.3(b) of the online terms, giving rise to a liability of MWC to pay CoreLogic the sum of $2,988,765, being $195 per associate per month for 39 months; and (b) login sharing by MWC contrary to cll A3, A4.1 and 4.3(b) of the online terms, giving rise to damages.

82. There is no extant defence to that claim, subject to a matter that I will come to.

Ms Grubisa’s affidavit

83. Ms Grubisa’s affidavit provides:

1 I am a named respondent to the Notice of Motion filed by the defendant on 9 April 2025 herein.

2 I am a former director of Master Wealth Control Pty Ltd (MWC), the plaintiff in these proceedings.

3 I make this affidavit in response to the Notice of Motion filed by the defendant/cross-claimant on 9 April 2025 and returnable on 16 April 2025 (“the Motion”),

4 I am not a party to these proceedings.

5 I was initially a co-plaintiff in the 2022 injunction application under the same proceeding number. However, when pleadings were filed, I was removed as a party with leave of the Court. The defendant/cross-claimant did not object. A copy of correspondence from Mr Brendan May, barrister, dated 12 April 2022 confirming this, is annexed and marked Annexure “A.”

6 After the Motion was filed, I was not served. The documents were emailed by the defendant to Mr Jim Lyons on Friday 11 April 2025

7 Mr Lyons does not act for me but he forwarded the documents to me via email on the evening of 11 April 2025, and I only became aware of them yesterday, 14 April 2025.

8 I note that the electronic copy of the affidavit in support of the orders sought in the motion was not served with any annexures or exhibits and as such I have not seen the documents or evidence relied on in support of the motion.

9 I have not taken any steps in these proceedings and have not submitted to the jurisdiction. My inclusion as a “respondent” on the Motion is incorrect and without legal basis.

10 I am currently subject to a banning order prohibiting me from being a company director. As a result, I cannot act on behalf of MWC or cause it to instruct lawyers or appear in this matter.

11 At all material times I was the sole director of MWC.

12 MWC has no substitute director and is effectively a dormant entity. It cannot prosecute or defend proceedings and has no capacity to appear in this matter.

13 Following the failure of the injunction in 2022, my solicitors DGI Lawyers offered to discontinue the matter on a walkaway basis with no order as to costs. A copy of that letter dated 11 April 2022 is annexed hereto and marked as Annexure “B”.

14 The defendant/cross-claimant declined this offer and insisted the matter be pleaded. Their solicitor responded on 12 April 2022 stating that they wished to proceed and for us to “plead [our] case.” A copy of this letter is annexed and marked Annexure C.

15 The current Motion seeks default judgment against MWC based on a November 2024 determination by the Office of the Australian Information Commissioner (OAIC). That determination states only that MWC “most likely breached” third-party licensing terms. A copy of the relevant extract is annexed and marked Annexure D.

16 The OAIC determination was made without an in-person hearing. The OAIC expressly refused our request to be heard, despite serious factual matters in dispute. A copy of that refusal dated is annexed and marked Annexure “E”.

17 l respectfully submit that reliance on such a determination-without cross-examination or application of the rules of evidence-is not sufficient to prove a contractual breach on the balance of probabilities.

18 I make this affidavit to clarify that:

a. I am not a party to the proceedings,

b. I cannot represent MWC due to regulatory disqualification,

c. I was not properly served,

d. The claims against MWC remain contested in substance, even if procedurally undefended.

Issue 1 - want of due despatch

84. Having set out the background to the matter, I will now address the three issues in CoreLogic’s notice of motion. I have been assisted by Mr Hastie’s submissions on each of the issues.

85. The first issue is whether the Court should grant CoreLogic the order it seeks for dismissal of MWC’s claim for lack of prosecution pursuant to r 12.7 of the UCPR or s 61(3) of the CPA.

86. Rule 12.7(1) of the UCPR provides:

If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

87. Mr Hastie outlined the following principles in his submissions:

88. The rule is to be applied in light of the overriding purpose in s 56(1) of the CPA to facilitate the just, quick and cheap resolution of the real issues in the proceedings: G**hosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 (Ghosh) at [42]-[43] per Macfarlan JA (Leeming JA at [55] and Adamson J at [56] agreeing).

89. Ensuring that parties adhere to the overriding purpose is important to protect the reputation of the administration of justice. He referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [93] where Gummow, Hayne, Crennan, Kiefel and Bell JJ considered the then ACT equivalent of s 56(1), being r 21(2) of the Court Procedure Rules 2006 (ACT):

Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants…

3. The power to dismiss a proceeding under r 12.7(1) should not be confined to “rigid formulae” or “rigid rules” and does not require “intentional and contumelious default”, referring to Heydon JA’s consideration of the then District Court equivalent of r 12.7(1), being Pt 18 r 3(1) of the District Court Rules 1973 (NSW), in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [52] (Sheller JA at [1] and Studdert AJA at [96] agreeing).

4. It is necessary to consider all relevant factors, including not only inactivity but a lack of “constructive activity”: Ghosh at [40]-[41] per Macfarlan JA (Leeming JA at [55] and Adamson J at [56] agreeing); Al-Shennag v Woodcock [2013] NSWSC 696 at [110] per McCallum J.

5. Mr Hastie emphasised that MWC, for the last 6 months, has neither taken any step to prosecute the proceeding nor otherwise engaged with the Court’s processes. He stressed that MWC is yet to appoint a new director and that it can be safely inferred that it lacks any intention to do so, relying on Ms Grubisa’s statement that it “…has no substitute director and is effectively a dormant entity. It cannot prosecute or defend the proceedings and has no capacity to appear in the matter”.

6. In light of the facts, Mr Hastie submitted that this is a case where there has been “a wholesale failure to engage with the processes of the court which reveals an arrant disregard for the importance of doing so” referencing Templar v Britton (No 2) [2014] NSWSC 587 at [37] per McCallum J. Accordingly, he submits, MWC’s claim should be dismissed pursuant to r 12.7(1) of the UCPR.

7. I accept Mr Hastie’s submissions. In the circumstances, I am satisfied that the claim should be struck out and dismissed.

Issue 2 - strike out and judgment claim

91. In his initial submissions, Mr Hastie contended that the failure by MWC to file any defence to the FASCC meant that its defence to the claim was taken to be the defence filed to the amended cross-claim, citing Westpac Banking Corporation Ltd v Kay (No 3*)* [2020] NSWSC 206 (Westpac) at [15] per Davies J.

92. On the pre-trial directions hearing, without debating the merits of the contention, I sought to understand more clearly from Mr Hastie the basis for that contention. It was not evident to me that that arose from the provisions of the UCPR.

93. Previously under the Court Rules, where the first party files a first pleading, an opposite party files a second pleading in answer, the first party amends the first pleading, and the opposite party does not amend the second pleading within a prescribed time, the second pleading has effect as a pleading in answer to the amended first pleading: see Pt 20 r 2A(5) of the Supreme Court Rules 1970 (NSW) (SCR). The Federal Court also had a similar rule. [14]

94. However, the rule no longer exists in this Court in express terms. Effective from 15 August 2005, at the commencement of the UCPR, the rule has not been incorporated into current rules. The Court, as part of the case management orders, for example, under ss 61 and 86 of the CPA and r 2.1 of the UCPR, may nonetheless direct that a prior pleading stands as the answer to an amended pleading. Further, occasionally even without express order, as a practical matter, judges might operate on the basis that such a (deemed) pleading arises. [15]

95. In the supplementary submissions, Mr Hastie foreshadowed a more conventional route to the relief now sought. He seeks for the Court to strike out the defence to the amended cross-claim and enter judgment in default.

96. As is evident from Ms Grubisa’s affidavit, she apprehends that the application for default judgment is based on the November 2024 determination by the Office of Australian Information Commissioner that MWC “most likely breached” third-party licencing terms. That assertion misapprehends the nature of the application on the motion.

Principles

97. Rule 12.7(2) of the UCPR provides:

If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

98. Mr Hastie submitted that the same principles above applying to r 12.7(1) also apply to subr (2).

99. Rule 16.2(1)(c) relevantly provides:

A defendant is in default for the purposes of this Part—

(c) if, the defendant having duly filed a defence, the court orders the defence to be struck out.

100. Rule 16.3(1)(a) provides:

If a defendant is in default, the plaintiff—

(a) may apply for judgment to be given under this Part, according to the nature of his or her claim for relief, against the defendant in default

101. Rule 16.6(1) provides:

If the plaintiff’s claim against a defendant in default is for a debt or liquidated claim or for a claim for unliquidated damages of the kind referred to in rule 14.13(2), judgment may be given for the plaintiff against the defendant for—

(a) a sum not exceeding the sum claimed, and

(b) interest up to judgment, and

(c) costs.

102. Mr Hastie submitted that a Court may make an order under rr 12.7(2) and 16.6 at the same time, citing as a recent example McGrath J’s judgment in Saade v Rahme [2024] NSWSC 645 at [10]-[13].

103. On the Court’s power to award default judgment, Mr Hastie referred to Barrett J’s comments in Wily v King [2010] NSWSC 352 at [16]-[17] where his Honour said that a failure to file a defence should be taken to represent acceptance of the statement of claim and admission of the allegations in it:

16. The philosophy underlying r 16.6 is that, because provision is made for the filing of a defence in response to a statement of claim and the statement of claim, of its nature, should contain all allegations necessary to make good the entitlement to the asserted cause of action, failure to file a defence should be taken to represent acceptance of the statement of claim and admission of the several allegations in it.

17. The important word in r 16.6, for present purposes, is “may”. The court is empowered to order judgment by default in cases within this rule but is not bound to do so. In Charles v Shepherd [1892] 2 QB 622 where judgment was sought upon default in delivery of a defence, Lord Esher MR said (at 624):

… the Court is not bound to give judgment for the plaintiff, even though the statement of claim may on the face of it look perfectly clear, if it should see any reason to doubt whether injustice may not be done by giving judgment; it has a discretion to refuse to make the order asked for.

104. Thus, a defendant who fails or refuses to file a defence exposes him or herself to a most significant prejudice of a party moving for judgment in default: Macdonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612; [2007] NSWCA 304 at [49] per Mason P (Giles JA agreeing at [77]).

Striking out the defence

105. Mr Hastie submitted that the defence should be struck out in light of the following:

106. MWC consented to the filing of the FASCC but did not file any defence responding to it, despite orders made by Registrar Walton on 16 December 2024.

107. The existing defence is wholly unresponsive to the allegations in the FASCC and therefore there has been no denial or traversal of the allegations in the FASCC.

108. It may be inferred that MWC has no intention of filing any defence which responds to the FASCC or putting the allegations in the FASCC in issue.

109. In light of the facts, and given the contention regarding whether the defence to the former pleading applies as a defence to the FASCC, I am satisfied that it is appropriate for more abundant caution to strike out the defence.

Judgment for cross-claimant

107. Ms Walford in an affidavit sworn on 14 July 2025 stated she was informed by Ms Messenger (leader of RP Data’s accounts receivable department) that RP Data has not received any payment towards either the unpaid fees or the unauthorised usage debt.

108. Ms Walford provided the claim amounts as follows:

109. a principal amount of $98,730.12 for the unpaid fees with $22,872.39 in interest; and

110. a principal amount of $2,988,765 for the unauthorised usage with $710,859.33 in interest.

111. In these circumstances, Mr Hastie submitted that RP Data ought not to be held out of a judgment.

112. The claim in respect of the unpaid fees debt appears relatively clear and I determine that there should be judgment for that amount, together with the calculated interest.

113. Mr Hastie carefully took me through the provisions of the licence agreement which relate to the claim in respect of the unauthorised usage debt. Mr Hastie contends, and it appears to be the case, that none of the MWC employees who were given access as MWC associates were actually engaged in the business of debt collection.

114. I am satisfied that there should be judgment in respect of that debt in the amount claimed, together with the amount of interest.

Issue 3 - non-party costs claim

Principles

113. Subject to the rules of court, the CPA and any other acts, costs are in the discretion of the Court: CPA s 98(1).

114. Usually, a costs order will only be made against a party to the proceedings. The rationale is referred to by Dal Pont as follows: [16]

There are clear reasons in justice for this, as the parties, by their involvement in the proceeding, have taken the risk of exposure to an adverse costs order. To impose a costs liability upon a non-party is potentially to expose such a person to a liability that in justice he or she should not have to bear, as he or she has not ordinarily chosen to initiate or defend the proceedings, and may lack any real interest in or connection with them.

115. However, in certain circumstances, it will be appropriate to order costs against a non-party. Mason CJ and Deane J in Knight v FP Special assets Ltd (1992) 174 CLR 178 at 192; [1992] HCA 28 commented:

Obviously, the prima facie general principle is that an order for costs is only made against a party to the litigation. As our discussion of the earlier authorities indicates, there are, however, a variety of circumstances in which considerations of justice may, in accordance with general principles relating to awards of costs, support an order for costs against a non-party. Thus, for example, there are several long-established categories of case in which equity recognized that it may be appropriate for such an order to be made.

116. Although not to be treated as an exhaustive list, [17] Basten JA in FPM Constructions Pty Ltd v Council of the C**ity of Blue Mountains [2005] NSWCA 340 at [210] (with Beazley JA at [1] agreeing) provided some criteria, some or a majority of which are satisfied by many of the cases in which costs orders have been made against non-parties:

(a) the unsuccessful party to the proceedings was the moving party and not the defendant;

(b) the source of funds for the litigation was the non-party or its principal;

(c) the conduct of the litigation was unreasonable or improper;

(d) the non-party, or its principal, had an interest (not necessarily financial) which was equal to or greater than that of the party or, if financial, was a substantial interest, and

(e) the unsuccessful party was insolvent or could otherwise be described as a person of straw.

117. Mr Hastie in his initial submissions provided four points grounding this prayer, which are, in summary:

118. Ms Grubisa, self-described as the “founder, director and CEO” of MWC, is the effective litigant in the proceedings. She was its sole director and secretary at all material times as well as the substantial if not sole shareholder. After the disqualification of Ms Grubisa as a director, MWC’s solicitors advised it was “now a dormant entity”.

119. As the sole current shareholder, Ms Grubisa has financial interest in the litigation. She also has non-financial interest as she was responsible for the creation and delivery of MWC’s educational courses, workshops and seminars.

120. MWC as a corporate entity can be regarded as a “person of straw”. Since Ms Grubisa’s disqualification, it has, according to its former solicitor, been “functionally incapable” of continuing the litigation. There is no evidence that it can pay the $5M penalty and compensation ordered by the Federal Court.

121. Ms Grubisa’s response to the motion in seeking to retreat behind the corporate veil in unpersuasive. With reference to her descriptions in her affidavit, it is said she has a close relationship with MWC.

122. After the preparation of Mr Hastie’s initial submissions, Ms Grubisa became a bankrupt on her own petition. Mr Hastie addressed this in the supplementary submissions, noting that the trustee of her bankrupt estate, Mr Jones, has indicated he has “no intention at this point in time in continuing with the proceedings.” Mr Hastie submitted that Ms Grubisa’s bankruptcy does not prevent RP Data from continuing to seek relief against her personally, with reference to he Bankruptcy Act 1996 (Cth) (Bankruptcy Act), the High Court’s decision in Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; [2007] HCA 56 (Foots) and the Full Court of the Federal Court’s decision in C**entral Queensland Development Corp Pty Ltd v Sunstruct Pty Ltd (2015) 231 FCR 17; [2015] FCAFC 63 (Sunstruct).

123. Section 58(3) of the Bankruptcy Act provides:

(3) Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:

(a) to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or

(b) except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.

120. Section 82 of the Bankruptcy Act contains several provisions addressing the meaning of “debts provable in bankruptcy”. Subsection (1) provides:

Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy.

121. In Foots, the High Court considered the nature of a costs order and whether it was a debt provable in bankruptcy. At [37], Gleeson CJ, Gummow, Hayne and Crennan JJ stated:

Upon like considerations, and again contrary to the appellant’s submissions, it cannot be said that exposure to an adverse costs order is “incidental” to liability for the underlying judgment debt (67). For reasons that will be explored later in these reasons, it is highly doubtful that the text of s 82 supports the notion of “incidental” liabilities that are not themselves provable debts. However, it is sufficient for present purposes to observe that, as a factual and legal matter, costs are no longer an “incident” of either verdict or judgment. As explained above, the making of an adverse costs order turns upon discretionary considerations that arise independently of the entry of judgment against the debtor.

122. The majority concluded at [67]:

Had the costs order made by Chesterman J on 3 February 2006 been made and taxed before the appellant’s bankruptcy ensued, it would have been a provable debt. Even if the order had not been taxed before bankruptcy, it would nonetheless have been provable as a debt incurred “by reason of an obligation incurred before the date of the bankruptcy”; namely the antecedent making of the costs order. However, the order was made only after bankruptcy had already intervened, and the appellant’s liability to meet that order did not arise from an obligation incurred before bankruptcy. Thus, it was not a provable debt, and the stay contained in s 58(3) of the Bankruptcy Act was not engaged. His Honour was therefore entitled to make the costs order against Mr Foots.

123. The Full Court of the Federal Court in Sunstruct summarised the High Court’s discussion of the nature of costs orders in Foots at [45]:

The majority proceeded to consider the nature of a costs order. In context, these remarks are apposite to a claim for a costs order. A number of characteristics emerged. First an award of costs is discretionary: at [25]. Second, there is no absolute rule that costs follow the event citing Oshlack v Richmond River Council (1998) 193 CLR 72 at [40]-[41]: at [26]. Third, no “obligation” arose until the costs order was made: at [35]. Fourth, the risk that an order for costs may be made is not a contingent liability within the meaning of s 82(1) of the Bankruptcy Act: at [36]. Fifth, the order for costs itself is the source of the legal liability: at [36]. Sixth, there is no certainty that the court in question will decide to make an order: at [36]. Seventh, costs are not an incident of a judgment: at [37].

Determination

124. Although I proceed on the basis that a costs order against Ms Grubisa would not be a debt provable in bankruptcy as the liability would arise after the date of bankruptcy, I am not satisfied that it is appropriate in light of the facts of this case to make such an order. Having regard to the principles, the following matters are of some relevance to the claim against Ms Grubisa.

125. First, whilst the litigation spanned a period of approximately three years, as far as I can detect based on the available material, Ms Grubisa has, except with respect to the matters I will now come to, not acted unreasonably or improperly.

126. One matter is the comment made by Slattery J regarding the dispute in respect of particulars. However, that appears to have been confined and his Honour’s comment as I noted above appears to be directed not merely to MWC but to the parties generally.

127. Another matter is that during the proceedings, MWC has not amended its claim in the proceedings. Rather, CoreLogic is the party that has on a number of occasions reformulated its claim by amended pleadings. Mr Hastie did not contend that the proceedings at least until December 2024 had been conducted by MWC or Ms Grubisa in any improper manner. However, he did contend that, since that time, the conduct could be described as being unreasonable, observing that it had declined to agree to consent judgment. Despite Mr Hastie’s submissions, I do not think that, in the limited time between the correspondence from Mr Lyons at the end of January 2025 through to the filing of the motion, the conduct of MWC or Ms Grubisa was unacceptably unreasonable or improper.

128. Secondly, I am prepared to accept that Ms Grubisa as a sole director of MWC had at least some active involvement in the conduct of the litigation at least in the provision of instructions. Mr Hastie submitted that the conduct of the matter particularly since 2024 demonstrated that Ms Grubisa had such a close connection with MWC that I could infer she effectively controlled MWC as her alter ego. Ultimately, I do not consider that there is a sufficiently sound basis for any retrospective inference to that effect. There is material which indicates that Ms Grubisa was not the only active person within MWC. An extract from her affidavit dated 3 May 2023 refers to key personnel within the executive team at MWC including, apart from herself, as a Director, Founder and CEO, Jocelyn Tannous as Chief Operating Officer and Greg Klopper involved with Marketing and Sales.

129. Thirdly, there is no particular indication Ms Grubisa would receive anything per se from the litigation, other than in an indirect manner arising from the fact that she is now the apparent sole shareholder of MWC. Mr Hastie did not contend otherwise.

130. Fourthly, as far as I can tell there is no evidence that Ms Grubisa funded the litigation as distinct from MWC from its corporate resources. Mr Hastie did not contend otherwise.

Average default risk for an Australian business. Standard underwriting criteria and due diligence recommended prior to extending credit. Extend terms, closely monitor ongoing payment behaviour.

133. Further, a creditor watch credit report for MWC generated as at 30 June 2025 discloses in fact an improved risk level rising to C1, that risk level being described as “neutral” and according to the report:

Entity currently has the aptitude to meet credit commitments. Unfavourable business, financial, or economic conditions may impair ability to meet financial commitments. Extend terms and monitor ongoing payment behaviour.

Entity has a 3.0% to 4.0% chance of default within the next 12 months.

134. Mr Hastie says that little weight can be given to the credit report. He points to the fact that the credit report reveals that there are no court actions against MWC. That much is true. Nonetheless, in the absence of any other clear evidence that MWC is insolvent, even if little or no weight is properly attributable to the credit report, based on the evidence before me, I am not prepared to infer that MWC is a company of straw.

135. On the other hand, Ms Grubisa is now bankrupt. As noted, according to the statement of affairs, she has creditors in the order of $3.44 million including debts to the ACCC of $1.5 million. Even excluding the reference to the $1 million which is recorded in that statement as being a debt to CoreLogic (about which I have commented earlier that it is a curious entry), nonetheless she has other creditors disclosed in the statement amounting to $2.44 million. Mr Hastie says that that is a neutral factor. For the purposes of this application, I am prepared to treat it neutrally.

136. Sixthly, Ms Grubisa was removed from the proceedings at an early stage. Until the amended defence filed in December 2024 which added allegations that Ms Grubisa was the controlling mind of MWC, no such allegation had seemingly been made in pleadings by CoreLogic.

137. In addition to those factors, although it is unnecessary for me to give it any weight, I note that at no stage during the pendency of these proceedings did CoreLogic seek an order that MWC provide security for costs. Mr Hastie was not able to refer me to any instance in which a costs order had been sought against a bankrupt director of a company in circumstances where the company had not been wound up.

138. In all the above circumstances, I do not consider that it is appropriate to make the costs order against Ms Grubisa.

139. Nonetheless, I do consider that it is appropriate to make an order for costs against MWC, there being no reason for costs other than to follow the event.

Orders

1. Orders pursuant to r12.7(1) of the Uniform Civil Procedure Rules (NSW) (UCPR):

(a) the plaintiff’s claim be dismissed; and (b) the plaintiff pay the defendant’s costs of the claim, including the costs of the motion.

2. Orders pursuant to rr 12.7(2), 16.2(1)(c), 16.3 and 16.6 of the UCPR:

(a) the cross-defendant’s defence to the amended statement of cross-claim be struck out; and (b) there be judgment for the cross-claimant in the sum of $3,087,495.12 together with interest of $733,731.72 pursuant to s 100 of the Civil Procedure Act 2005 (NSW); and (c) the cross-defendant pay the cross-claimant’s costs of the cross-claim, including the costs of the motion.

3. Orders that the motion filed on 9 April 2025 by the defendant/cross-claimant be otherwise dismissed.

**********

Endnotes

Statement of Claim [13].

CB 97[15]-[17].

T 21.40-.43.

CB 4 (Statement of Claim [4]).

CB 8.

CB 9.

CB 11-13.

CB 21.

CB 21-22.

CB 50.

CB 26.

CB 30.

CB 31.

Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 7) [2010] FCA 921 per Graham J at [1] referencing the then provisions of O 13 r 4(4) of the Federal Court Rules.

For example, Westpac at [15] per Davies J.

GE Dal Pont, The Law of Costs (5th ed, 2021, LexisNexis) at [22.1].

See Sackville AJA’s comments in May v Christodoulou (2011) 80 NSWLR 462; [2011] NSWCA 75 at [111].