Plaintiff v Defendant

PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic) - Possible questions arising regarding compliance with Civil Procedure Act 2010 (Vic) where relatively small claims brought in the Supreme Court of Victoria when within the jurisdiction of the County Court of Victoria or the Magistrates' Court of Victoria - Default judgment - Judgment in default of appearance pursuant to r 21.03(1)(d)(i) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Entry of interlocutory judgment in default of appearance in respect of delivery of goods or their value to be assessed under r 21.03(1)(d)(i) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Rules 2.04, 21.03(1)(d)(i), 66.04, and Forms 60L and 68C of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Leave to seek to enter judgment in default of appearance - Rule 2.07(1) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic).

1 The plaintiff (plaintiff or Bank) makes a claim against the defendant in respect of an alleged loan of $98,395 (Loan) made to the defendant pursuant to a loan agreement dated 19 November 2021 between the Bank and the defendant (Loan Agreement) for the purpose of providing finance for the purchase by the defendant of a 2015 CASE CX145C Excavator (Excavator). It is alleged that the Excavator was to be security for the Loan, that payments of interest and principal were required to be made, that on 25 October 2024 the defendant defaulted under the Loan Agreement by failing to pay amounts owing, a demand was made for outstanding amounts, and that, as a result of the default, the Bank is entitled to claim all amounts owing under the Loan Agreement and take possession of and sell the Excavator.

2 The defendant has not filed an appearance and, by its summons filed on 16 October 2025 (Application), the Bank seeks orders to the following effect:

(1) Pursuant to r 2.07(1) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Miscellaneous Rules), the Bank have leave to enter[1] judgment against the defendant in default of an appearance.

(2) Pursuant to r 1.15 and/or r 2.04 of the Supreme Court (General Civil Procedure) Rules 2025 (Rules), or the Court's inherent jurisdiction, the plaintiff be entitled to enter final judgment for delivery up of the Excavator, without giving the defendant the option to retain the Excavator on paying to the Bank its assessed value (Delivery Up Order).

3 The Bank relied upon the following material in support of the Application:

(1) Affidavit of service of Luke Norman affirmed 16 July 2025.

(2) Affidavits of the Bank's solicitor, Krishneel Krishan Naidu, sworn 7 October 2025 and 27 October 2025.

(3) Affidavit of service of Jemma Rae Grguric affirmed 28 October 2025.

(4) An outline of submissions filed 7 October 2025 (Outline), which was supplemented by oral submissions by counsel for the Bank at the hearing on 19 November 2025 (Hearing).

(1) leave will be granted to the Bank pursuant to r 2.07(1) of the Miscellaneous Rules to seek to enter judgment in default of appearance against the defendant in respect of the debt, interest and costs referred to in the statement of claim;

(2) the Bank's entitlement to costs in respect of the proceeding upon any entry of judgment in default of appearance pursuant to the leave referred to above is to be limited to such amount of costs as would have been allowed if the proceeding had been commenced in the County Court and judgment in default of appearance had been entered in the County Court;

(3) insofar as the Application seeks leave to seek to enter judgment for the delivery up of the Excavator without giving the defendant the option to pay its assessed value, the Application will be dismissed; and

(4) the Bank is to bear 50% of its own costs of and incidental to the Application, with the balance of such costs being the Bank's costs in the proceeding.

5 In short,[2] the application for leave to enter default judgment in the form of the Delivery Up Order is dismissed because: r 23.01(1)(d)(i) of the Rules does not permit the Bank to seek to enter judgment for only delivery up of the Excavator; there is no inferred or other power or right pursuant to which the Bank is entitled to enter judgment for such an order; r 1.15 of the Rules does not relevantly engage in the circumstances; and even if r 1.15 had relevantly engaged, any alternative procedure that would have been adopted would not have allowed the Bank to enter judgment for delivery up of the Excavator in the manner sought.

The plaintiff's claim, the statement of claim, and service on the defendant

6 The Bank's claim is set out in its statement of claim indorsed on the writ filed 9 April 2025. The statement of claim is a short document and, given the matters later discussed, it is convenient to set out its terms in full, which I do below:

1. The Plaintiff is and was at all relevant times a duly incorporated company and is capable of suing in its own name pursuant to the Corporations Act 2001 (Cth).
2. The Defendant is and was at all relevant times a duly incorporated company and is capable of being sued.
3. By an equipment loan schedule dated 19 November 2021, the Plaintiff agreed to provide finance to the Defendant and the Defendant agreed to accept finance from the Plaintiff, on the terms set out in the agreement (Agreement).

The Agreement is in writing and incorporates the Plaintiff's Current Terms and Conditions for Asset Finance (052019) (Terms and Conditions). A copy of the Agreement is in the possession of the Plaintiff's lawyers and a copy may be provided on request.

1. The Terms and Conditions of the Agreement included, amongst other things, that:

(a) the sum of $98,395.00 would be provided by the Plaintiff to the Defendant (Loan);

(b) the security for the Loan would be (inter alia) a 2015 CASE CX145C Excavator, serial number NFS6E1591 and engine number JJ1189839 (Excavator);

(c) interest would be charged on the Loan as set out in the Agreement, which rate(s) may be varied from time to time;

(d) the Defendant would pay the Loan and interest thereon to the Plaintiff in accordance with the terms of the Agreement;

(e) the Defendant would be in default under the Agreement if it did not pay on time any amount payable under the Agreement;

(f) if the Defendant defaulted under the Agreement, the Plaintiff would give the Defendant 30 days' notice to fix the default, if the default could be fixed;

(g) if the Defendant did not fix the default after service of a notice, the Plaintiff may:

(i) decide that all amounts the Defendant owes the Plaintiff are due immediately, without further notice;

(ii) sue the Defendant for the money it owes the Plaintiff;

(iii) take possession of and sell the Excavator; and

(h) the Defendant must pay the Plaintiff its reasonable costs and losses the Plaintiff incurs in exercising its rights under the Agreement.

1. In reliance on (inter alia) the Agreement and the Excavator, the Plaintiff advanced the Loan to the Defendant.
2. Prior to 25 October 2024, the Defendant had defaulted under the Loan by reason of it failing to pay monies due to the Plaintiff on time. As a result, the Plaintiff was entitled to enforce its rights under the Agreement.

As at 25 October 2024, the Loan was in arrears in the amount of $103,197.48.

1. By notice of default and demand dated 29 October 2024, the Plaintiff demanded from the Defendant the outstanding arrears owing under the Agreement in the amount of $103,197.48 by 9 December 2024 (Demand).

A true copy of the demand is in the possession of the Plaintiff's lawyers and a copy can be provided on request.

1. The Defendant failed to comply with the Demand.
2. As at 28 March 2025, the total amount due and owing on the Loan is $110,926.99 plus interest on that sum at the rate charged by the Plaintiff pursuant to the Agreement, being a rate as at 28 March 2025 of 7.98% per annum.

AND THE PLAINTIFF CLAIMS AGAINST THE DEFENDANT

1. Payment of the sum of $110,926.99, as at 28 March 2025, pursuant to the Agreement.

2. Interest on $110,926.99 at the rate of 7.98% per annum from 28 March 2025 until payment.

3. Alternatively to B, interest pursuant to Statute.

4. An order that the Defendant deliver up to the Plaintiff the 2015 CASE CX145C Excavator, serial number NFS6E1591 and engine number JJ1189839 (Excavator), or pay to the Plaintiff the assessed value.

5. In the alternative to D, damages for detinue/conversion of the Excavator.

6. Costs calculated on a standard basis.

7. Such further or other order or relief as the Court deems fit.

DATED: 9 April 2025

7 The affidavit evidence revealed that the writ and statement of claim was served on the defendant in April 2025 and that subsequent correspondence has been provided to the defendant, including in relation to the Application. To date the defendant has not filed an appearance, responded to any other communications from the Bank's solicitors, filed a defence to the statement of claim, or otherwise responded to it.

Relevant rules for judgment in default of appearance

8 Judgment in default of appearance or pleading is addressed in ord 21 of the Rules. Relevantly, rr 21.01-21.04 and r 21.07 provide in part as follows:

(1) This Rule applies only to a proceeding commenced by writ.

(2) Where a defendant does not file an appearance within the time limited, the plaintiff may enter or apply for judgment against that defendant in accordance with this Order unless Rule 2.07(1) of Chapter II applies.

Note

Rule 2.07(1) of Chapter II provides that, in a Commercial List that is managed by a Commercial List Judge, an order of a Commercial List Judge is required before judgment in default of appearance can be entered.

(3) Judgment shall not be entered or given for the plaintiff unless there is filed -

(a) a notice to the Prothonotary requesting the Prothonotary to search for an appearance by the defendant;

(b) an affidavit proving service of the writ on the defendant; and

(c) where the plaintiff applies for judgment in accordance with Rule 21.04 and the indorsement of claim on the writ does not constitute a statement of claim in accordance with Rule 5.04, a statement of claim.

...

21.03 Judgment for recovery of debt, damages or property

(1) Where a claim is made for the recovery of a debt, damages or any property, whether or not another claim is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with Rule 21.01 or Rule 21.02, the plaintiff may -

(a) for the recovery of a debt, enter final judgment against that defendant for an amount not exceeding the amount claimed in the writ or, if the plaintiff has served a statement of claim, the amount claimed in the statement of claim, together with interest from the commencement of the proceeding to the date of the judgment -

(i) on any debt which carries interest, at the rate it carries;

(ii) on any other debt, at the rates payable on judgment debts during that time;

(b) for the recovery of damages, enter interlocutory judgment against that defendant for the damages to be assessed;

(c) for the recovery of land, enter judgment for possession of the land against that defendant;

(d) for the detention of goods, enter interlocutory judgment against that defendant -

(i) either for the delivery of goods or their value to be assessed or for the value of the goods to be assessed; and

(ii) if a claim is made for the recovery of damages for the detention of the goods, for the damages to be assessed.

(2) Upon entering judgment under paragraph (1), the plaintiff may also enter judgment for costs.

(3) Where under paragraph (1) damages or the value of goods are to be assessed, the assessment shall, unless the Court otherwise orders, be made by an Associate Judge in accordance with Order 51.

...

21.04 Judgment other than for recovery of debt, damages or property

(1) Where a claim is made other than for the recovery of a debt, damages or any property, whether or not a claim for such recovery is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with Rule 21.01 or 21.02, the Court may give judgment for the plaintiff upon the statement of claim.

(2) An application for judgment under paragraph (1) may be made without notice to the defendant.

...

21.07 Setting aside judgment

The Court may set aside or vary any judgment entered or given in accordance with this Order.

9 It is to be emphasised that there is a fundamental difference between entering judgment in default through the Prothonotary, which is an act of administrative or ministerial character, and the giving of judgment (or making of an order) by a judicial officer consequent upon an application made by a party, which is an act that is of judicial character.[3] Experience suggests that this important distinction is not always fully appreciated or understood by practitioners when a party seeks to enter judgment under r 21.03 of the Rules.

10 Rule 60.08 of the Rules requires the forms of judgment and orders in Forms 60A to 60L of the Rules to be used where appropriate. Form 60L of the Rules is the form of judgment for interlocutory or interlocutory and final judgment for detention of goods in default of, relevantly, appearance. This form of judgment does not provide for a form of judgment for delivery of goods only, which is consistent with the terms of r 21.03(1)(d)(i) of the Rules.[4]

11 Putting to one side for present purposes the Court's inherent jurisdiction to recall its own judgment where it has been obtained in default, r 21.07 of the Rules allows the Court to set aside or vary (relevantly) any judgment entered in accordance with ord 21. The rule gives the Court a discretion to set aside the judgment, and in exercising that discretion a distinction is drawn between a judgment which is regularly entered and one which is not. Where the default judgment is irregular, or was obtained in breach of good faith, it will ordinarily be set aside as of right, unless (among other circumstances the detail of which need not be discussed) the irregularity has been waived, or it is due to an error arising from an accidental slip or omission allowing for it to be amended pursuant to r 36.07 of the Rules.[5]

12 Where a defendant fails to file an appearance or a defence entitling a party to seek to enter or apply for default judgment under ord 21, the allegations in a statement of claim are taken to be admitted. However, and relevantly for present purposes, it is to be noted that a default judgment will be irregular where, among other things, the writ or statement of claim is defective in not disclosing a cause of action. Other instances of irregular default judgments entitling the defendant to have the judgment set aside as of right include where the plaintiff has not complied with the rules as to service and the writ was not served on the defendant.[6]

Rule 2.07(1) of the Miscellaneous Rules and the requirement to obtain leave to seek to enter judgment in default of appearance

13 Rule 2.07(1) of the Miscellaneous Rules provides that 'Judgment in default of appearance or pleading shall not be entered in a proceeding in a Commercial List that is managed by a Commercial List Judge unless a Commercial List Judge so orders'.

14 I addressed the operation of r 2.07(1) of the Miscellaneous Rules in Victorian WorkCover Authority v White,[7] Xie v Zhang,[8] and CTRC Pty Ltd v Yao (CTRC),[9] and it is convenient and efficient to repeat aspects of what I said in those cases.

15 Ordinarily the administrative step of seeking to enter judgment in default of appearance is taken by the plaintiff through the Prothonotary in accordance with ord 21 of the Rules without first making an application to the Court for leave to take that step. This proceeding is managed by a Commercial List Judge, so r 2.07(1) of the Miscellaneous Rules is engaged.[10] When the rule was introduced, the requirement was materially based upon case management, cost, and efficiency considerations, including preventing what is colloquially known as 'snapping on' judgment in default. However, the leave requirement does not otherwise alter the essentially administrative process for entering judgment where leave is granted to seek to pursue that course, and neither does it change the administrative or ministerial character of the act of the Prothonotary in entering judgment in default of appearance or pleading.

16 It follows that, where, as here, the proceeding is managed by a Commercial List Judge, before the plaintiff can seek to enter judgment in default of appearance pursuant to rr 21.01 and 21.03(1) of the Rules, it is necessary for the plaintiff to obtain an order from the Court granting leave to the plaintiff to seek to take that step, which is what the plaintiff sought in this application.

17 If leave under r 2.07(1) of the Miscellaneous Rules is granted to a plaintiff it is then open to that plaintiff to utilise the relevant procedures under rr 21.01 and 21.03(1) of the Rules to seek to enter judgment in default of appearance through the Prothonotary in the usual way, but subject, of course, to the Prothonotary being satisfied that the necessary requirements have been met and that it is otherwise appropriate to enter default judgment in the terms sought. In this context the effect of not filing an appearance is that the allegations in the statement of claim are taken to be admitted and the statement of claim will be sufficient to ground the requested relief if the relevant civil wrong is sufficiently pleaded, with sufficient notice being given of the claim and the relief or remedy sought, although the Court will eschew an overly technical approach in this context.[11] These are matters to which the Prothonotary also gives attention when a plaintiff seeks to enter judgment in default of appearance under r 21.03(1) of the Rules.

18 The Bank referred to the directions hearing on 18 July 2025 (Directions Hearing) when I raised a number of issues with counsel for the Bank, including whether it is permissible for a party to enter judgment in default of appearance for delivery up of a chattel without giving a defendant the option of retaining the chattel upon the payment of its assessed value. In so doing I drew attention to my observations in Commonwealth Bank v RGV Transport Pty Ltd (RGV Transport).[12] In these observations I raised, among other things, the question of whether the relevant rules under ord 21 contemplated or permitted the entry of default judgment for delivery up of goods only, as opposed to (relevantly) the entry of interlocutory judgment in default for the 'delivery of goods or their value to be assessed'. As things transpired this issue did not need to be determined in RGV Transport.[13]

19 In its submissions the Bank accepted that, consistent with my observations in RGV Transport, r 21.03 of the Rules does not expressly empower the Court to enter a final default judgment requiring delivery up of goods only, without affording the defendant the option to retain the goods upon payment of their assessed value. However, it was submitted that such a power may be inferred from other provisions within the Rules, and in so doing reference was made to aspects of the commentary of the authors of Civil Procedure Victoria.[14] In particular the following passage from that work was set out by the Bank:

A claim for the detention of goods is commonly called a claim in detinue. At common law the action in detinue resulted in a judgment for the delivery up of the chattel or payment of its value as assessed, and for payment of damages for its detention. The defendant could not at common law be compelled to return the chattel. Under this form of judgment, the defendant had, in effect, an option whether to return the chattel or pay its value. However, the court now has power to give judgment in terms that the defendant deliver up the goods without having the option of retaining the property upon paying the value assessed. The existence of the power is to be inferred from rr 21.03 and 66.04, in particular, r 66.04(1) and (2).

20 Reference was made to r 66.04(1) and (2) of the Rules, with emphasis being placed upon the fact that they provide for or contemplate enforcement of a judgment for delivery of goods or their value to be assessed by, among other things, a warrant of delivery for either: (a) the delivery of goods; or (b) the delivery of the goods or recovery of their assessed value.

21 In addition reference was made to the observations of McDonald J in Tuohey v Tuohey (as executor of the Will and Estate of Tuohey (deceased)).[15] Counsel for the Bank noted that in this decision - which I observe was a contested application and did not concern the entry of judgment in default of appearance - McDonald J observed as follows:

A claim in detinue founded on the wrongful detention of goods, when a demand for their return has been made to the possessor of the goods, is a claim in tort. At common law judgment in an action in detinue was an order for return of the goods or payment of the assessed value of the goods when they could not be returned. It was not the plaintiffs election whether the defendant would pay to the plaintiff the value of the goods or return the same. However pursuant to s. 78 of the Common Law Procedure Act 1854 the law was altered by empowering a judge in an action for detinue to order that the goods be returned without giving the defendant the option to pay to the plaintiff the value of the goods assessed while retaining the goods.[16] This Court has the power to make such order as provided by Rule 22.13.

22 The Bank submitted that if a party may obtain summary judgment limited to delivery up of goods, it is unclear why that same option would not be available when entering default judgment, and the Bank submitted that it was unable to identify any rationale for such a distinction.

23 The Bank further submitted that resort could be had to r 1.15(1) of the Rules, being a rule that engages where a procedure is wanting or in doubt. As was observed by the Bank, that rule is in the following terms:

(a) for commencing, or for taking any step, in a proceeding; or

(b) by which the jurisdiction, power or authority of the Court is exercisable -

is not prescribed by these Rules or by or under any Act, or for any other reason there is doubt as to the manner or form of that procedure, the Court shall determine what procedure is to be adopted and may give directions.

24 The Bank submitted that, accordingly, the Court had the power under r 1.15(1) of the Rules to permit final judgment to be entered for delivery up of the Excavator alone where the plaintiff elects not to give the defendant the alternative of paying the assessed value.

25 Although the Application also made reference to r 2.04 of the Rules, which allows the Court to dispense with compliance with the Rules, whether before or after the occasion for compliance arises, no submissions were made on this topic. In response to an enquiry from the Bench at the Hearing, counsel for the Bank confirmed that its reliance on r 2.04 of the Rules was no longer pressed.

26 On a different topic, the Bank submitted that this proceeding should remain in the Supreme Court and not be transferred to the County Court. This was raised because at the Directions Hearing, and in RGV Transport,[17] I had made some observations regarding the Bank initiating what are (in relative terms) small claims in the Supreme Court in circumstances where such claims would be more suitable to being commenced in the Magistrates' Court or the County Court, depending upon, among other things, the amounts claimed.

27 The Bank submitted that because the next procedural step in this case is the entry of judgment in default of appearance it would be more efficient in terms of timing and resources to permit that step to be taken by this Court rather than transferring the proceeding to the County Court. It was further submitted that because the issue of whether judgment in default may be entered for delivery up of goods only had been raised in this proceeding, and in RGV Transport,[18] it was appropriate for this Court to determine the issue.

28 During oral submissions counsel for the Bank made reference to a number of matters in the Bank's Outline, and additional submissions and matters raised included, in substance, the following:

(1) The Bank's contention about the entitlement to enter judgment in default for only the Delivery Up Order being supported by the decisions in General Motors Acceptance Corporation of Australia v Davis (General Motors)[19] and Bellinger v Autoland Pty Ltd (Bellinger).[20]

(2) The Bank's claim to the Excavator was put on two bases. First, a claim to enforce the Bank's alleged right under the terms of the Loan Agreement to take possession of the Excavator. Second, a claim in tort for detinue.

(3) Even if the Bank's claim seeking to enforce the defendant's alleged contractual obligation to give possession of or deliver up the Excavator is properly characterised as a claim in specific performance, judgment for specific performance can be entered against the defendant pursuant to r 21.03 of the Rules because it relates to property, namely the Excavator.

(4) Rule 1.15 of the Rules could be employed in support of the Bank's position, including in support of the alleged inferred entitlement to enter judgment as claimed by the Bank.

(5) There were no other matters that needed to be raised with the Court regarding the application for leave insofar as it related to the claim in debt for the loan amount and interest.

(6) For the purposes of the Application the Bank does not seek leave in respect of its claim for 'damages for detinue/conversion of the Excavator'.[21]

(7) As noted earlier, it was confirmed that the Bank no longer sought to rely upon r 2.04 of the Rules, being the provision that allows the Court to dispense with compliance with the requirements of the Rules.

29 It was ultimately submitted that the Court should make an order under the Miscellaneous Rules giving leave to the Bank to seek to enter judgment in default of appearance against the defendant for payment of the debt, interest and costs, and for delivery up of the Excavator without providing the option for the defendant to pay the assessed value of the Excavator rather than delivering it up.

Some brief observations about the tort of detinue, s 78 of the Common Law Procedure Act 1854 (UK), rr 21.03(1)(d)(i), 66.04(1) and (2) of the Rules

30 As the authors of Law of Torts,[22] Balkin and Davis, have observed, wrongful detention of a chattel for which a demand for return has been made by the person with a right to immediate possession of the chattel will constitute the tort of detinue. The defendant must be in possession of the chattel or have been in possession of it under a bailment and wrongly parted with possession, and the plaintiff must have an immediate right to its possession. Whilst an owner may have a right to immediate possession, that will depend upon the circumstances, and therefore ownership in and of itself need not be proved to establish the tort.

31 As Balkin and Davis have also observed,[23] the plaintiff must ordinarily prove that the defendant wrongfully and unequivocally failed or refused to comply with the demand for return of the chattel, which in part is what distinguishes the tort of detinue from that of conversion. This is because a defendant who complies with a valid demand and delivers up the chattel commits no tort.

32 Whether or not a demand made is sufficient for the purpose of establishing this element of the tort will depend upon the circumstances. For example, and again as Balkin and Davis observed,[24] in Lloyd v Osborne[25] the demand was held not to be sufficient because it did not say where the sheep in question were to be delivered, and nor did it identify the relevant agent. Consequently, the defendant was able to not comply with the demand without it being construed as a refusal that would support an action in detinue. In such a context it may also be the case that the failure to deliver up the goods is fairly characterised as not a 'wrongful' detention or failure to comply with the demand.

33 It is uncontroversial that at common law an action in detinue did not entitle a plaintiff to specific restitution of the goods detained, and that even where recovery of the goods was sought, the defendant could elect either to pay the assessed value of the goods or deliver them up.[26] In Re Gillie; Ex Parte Cornell (Re Gillie),[27] Finn J briefly addressed the history of how the remedies for common law detinue were modified, including by reference to the Supreme Court General Rules of Procedure in Civil Proceedings 1996 (Vic):[28]

As is well known, at common law an action in detinue did not entitle a plaintiff as of right to specific restitution of the goods detained. Even where recovery of the goods was sought, the defendant had the election to pay the assessed value of the goods rather than return them. The common law position was first ameliorated by the specific restitution jurisdiction developed in courts of equity: see generally, Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 3rd ed, Butterworths, Sydney, 1992, Ch 22; and was subsequently modified in England by the Common Law Procedure Act 1854 (UK), s 78 which empowered the court after judgment in detinue[29] to order execution by way of specific delivery: on the rule and its statutory modification see Nash v Barnes [1921] NZGazLawRp 153; [1922] NZLR 303.

That statutory modification has been replicated in this country, albeit in Victoria it now exists, so it would seem, in consequence of inferences drawn from the Supreme Court's General Rules of Procedure in Civil Proceedings 1996, O 21, r 3 and O 66, r 4 see Williams, Civil Procedure Victoria, Butterworths, Sydney, I 21.03.130; I 66.04.0. It is this inferred power to order delivery of the cattle that I am invited to exercise in these proceedings.

It is the case that the jurisdiction which derives from the Common Law Procedure Act 1854 (UK) and its successors is a discretionary one: see Howard 5 E Perry and Co Ltd v British Railways Board [1980] I WLR 1375 at 1382-3; Nash v Barnes at 306-7.

Because the circumstances here are ones in which there are reasonable grounds for apprehending that an award of damages would go unsatisfied, and because no set-off or cross claim has been raised, the case is one "where it would be unjust or improper that [Melissa] should have the option of paying the money or keep the [cattle]": cf Chilton v Carrington (1855) 24 LJCP 78 at 80. I will, then, give[30] judgment for the delivery of the cattle. I should add that, in all probability the equitable jurisdiction to which I have referred would equally have justified the making of such an order: cf Aristoc Industries Pty Ltd v R A Wenham Builders Pty Ltd [1965] NSWR 581 at 588.

34 It is relevant to note in this context that, as observed by Finn J and in many other authorities, the change brought about by s 78 of the Common Law Procedure Act 1854 (UK) (1854 UK Act) did not at that time address the form of judgment to be given in detinue but, rather, addressed how a judgment for detinue at common law in the 'orthodox' form for detinue (relevantly, for delivery up of goods or payment of their assessed value) might be enforced. The legislative change enabled a party seeking to issue a warrant of execution consequent upon such a judgment in detinue to seek an order to have the warrant of execution limited to delivery up of the goods only, without giving the defendant the option to pay the assessed value of the goods, and notwithstanding that the form of execution did not follow the form of the judgment.[31] The power conferred by s 78 of the 1854 UK Act was a discretionary power, as the opening words of the section reveal.

35 As is apparent from the above, the relevant historical legislative change was the introduction of s 78 of the 1854 UK Act, which was in the following terms:

The Court or a Judge shall have Power, if they or he see fit so to do,[32] upon the Application of the Plaintiff in any Action for the Detention of any Chattel, to order that Execution shall issue for the Return of the Chattel detained, without giving the Defendant the Option of retaining such Chattel upon paying the Value assessed, and that if the said Chattel cannot be found, and unless the Court or a Judge should otherwise order, the Sheriff shall distrain the Defendant by all his Lands and Chattels in the said Sheriff's Bailiwick, till the Defendant render such Chattel, or, at the Option of the Plaintiff, that he cause to be made of the Defendant's Goods the assessed Value of such Chattel; provided that the Plaintiff shall, either by the same or a separate Writ of Execution, be entitled to have made of the Defendant's Goods the Damages, Costs, and Interest in such Action.

36 The fact that the change related to execution is not only evident from the terms of s 78 itself, it is also well illustrated by the observations of Rowlatt J in Bailey v Gill,[33] where judgment was given on a detinue claim for the return of a sewing machine or the payment of its (specified) value within a specified time. The order not having been complied with resulted in a successful application to a judge for an order that a warrant of delivery issue in respect of the delivery up of the sewing machine only, without allowing for the payment of its assessed value. Rowlatt J determined that this was permissible by reason of the operation of s 78 of the 1854 UK Act. Rowlatt J addressed the issue as follows:[34]

In this case the action was brought for the return of a sewing machine wrongfully detained. The judge found for the plaintiff and ordered the defendant to return it or pay 6_l_. 10_s_., its value, within a specified time. The defendant having failed to comply with that order, the judge ordered that a warrant of delivery should issue. The question is whether he had power to make that order having regard to the form of the judgment. It was contended that to make such an order would be to vary the terms of the judgment. But the issue of a warrant of delivery is merely a mode of execution, and it is not necessary that the execution should follow the letter of the judgment. Before the Common Law Procedure Act, 1854 , where an action was brought for the wrongful detention of a chattel, the form of the judgment, if for the plaintiff, was that "the said A. B. do recover against the said C. D. the goods and chattels aforesaid or the said sum of - l. for the value of the same," and the Common Law Courts had no power to compel the defendant to adopt the alternative of returning the goods. The defendant could always satisfy the judgment by paying the assessed value. By s. 78 of the Act of 1854, a new form of execution of that judgment was introduced, the Court being empowered to "order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining such chattel upon paying the value assessed." But the form of the judgment remained as before in the alternative, giving the defendant an option of paying the value, so that the form of execution did not necessarily follow the judgment. And the form of the judgment still remains the same both in the High Court and in the County Court. Ord. 25, r. 69, of the County Court Rules is in substantially the same terms as s. 78 of the Common Law Procedure Act, 1854 , and as it was treated as no objection that the execution did not follow the judgment in the High Court, neither can it be in the County Court. The defendant's objection to the issue of the warrant of delivery therefore fails, and the appeal must be dismissed.

37 The rules of the Supreme Court in Victoria have also reflected this change over time. As was discussed in General Motors,[35] this was addressed in, for example, r 48.1 of the Rules of the Supreme Court of Victoria 1985, which provided as follows under the heading 'Writ of Delivery':

1 Absolute order for.-Where it is sought to enforce a judgment or order for the recovery of any property other than land or money by writ of delivery, the Court or a Judge may, upon the application of the plaintiff, order that execution shall issue for the delivery of the property, without paying the defendant the option of retaining the property upon paying the value assessed (if any), and that if the property cannot be found, and unless the Court or Judge shall otherwise order, the Sheriff shall distrain the defendant by all his lands and chattels till the defendant deliver the property; or, at the option of the plaintiff, that the Sheriff cause to be made of the defendant's goods the assessed value (if any) of the property.

38 With respect to the current Rules, I refer to r 66.04, which is in the following terms:

(1) A judgment for the delivery of goods and a judgment for the delivery of goods or the payment of their assessed value may be enforced by one or more of the following means -

(a) warrant of delivery; and

(b) where Rule 66.05 applies, and subject to Rule 66.10 -

(i) committal; and

(ii) sequestration.

(2) The warrant of delivery shall, as the judgment requires, be for -

(a) the delivery of the goods; or

(b) the delivery of the goods or recovery of their assessed value.

(3) A warrant of delivery may include provision for enforcing the payment of money required to be paid by the judgment and money recoverable under section 107(1) of the Service and Execution of Process Act 1992 of the Commonwealth.

(4) A judgment for the payment of the assessed value of goods may be enforced by the same means as any other judgment for the payment of money except a judgment for the payment of money into court.

39 I note also that the above discussion is consistent with various parts of the observations and commentary of the authors of Civil Procedure Victoria when addressing rr 21.03[36] and 66.04 of the Rules.[37]

40 Although it has been observed in Civil Procedure Victoria that when addressing a claim in detinue the court has the power to give judgment in terms that the defendant deliver up the goods without having the option of paying their assessed value, and that this power is to be inferred from rr 21.03 and 66.04(1) and (2) of the Rules, although limited, my analysis to date on this issue suggests that this observation may warrant more detailed consideration and analysis to determine the extent to which it is correct. Very briefly, I say this because of the following.

41 First, the change brought about by s 78 of the 1854 UK Act related to the making of orders for execution upon a judgment in detinue, not the giving of judgment itself.[38]

42 Second, that the legislative change related to execution rather than the judgment itself has been referred to in many of the authorities referred to earlier and has been reflected in earlier iterations of the rules of this Court. A good example is the terms of r 48.1 of the rules of the Supreme Court of Victoria 1985, which is in the terms set out in paragraph 37 above.

43 Third, putting to one side the terms of r 22.13 in connection with a summary judgment application for the moment, and subject to the comments about r 66.04 below, the Rules do not appear to contain any express rule empowering the Court to give a judgment in respect of only delivery up of goods on a successful detinue claim. It is to be remembered in this context that it is well accepted that at common law the tort of detinue (relevantly) allows only for the defendant to deliver up the chattel or pay its specified value at the defendant's election.

44 Fourth, although r 66.04(1) refers in the chapeau to r 66.04(1) to, among other things, 'a judgment for the delivery of goods', and separately, 'a judgment for the delivery of goods or the payment of their assessed value', it is by no means clear to me that the reference to a 'judgment for the delivery of goods' in this rule is intended to imply that the Court has the power to give such a judgment on a claim in detinue, and again keeping in mind the operation of the common law, and the introduction and history of the 1854 UK Act. It is also to be noted in this context that, consistently with s 78 of the 1854 UK Act, r 66.04 of the Rules is dealing with enforcement.

45 Fifth, it does not necessarily follow that the reference to 'a judgment for the delivery of goods' in r 66.04(1) is intended to relevantly address the tort of detinue. This is because 'a judgment for the delivery of goods' only can arise in other circumstances, including, in particular, where a claim for specific restitution in equity is made in connection with chattels in the possession of a defendant.[39]

46 Sixth, the terms and operation of r 21.03 of the Rules, whether considered alone or in combination with r 66.04, do not appear to provide any support for the existence of such an inferred power, noting also that the forms of judgment addressed in r 21.03(1)(d) do not contemplate or allow for judgment in respect of delivery up of goods only.

47 That said, given the limited nature of the Application before me, it is neither necessary nor desirable to further explore these issues for present purposes. They are matters to be considered further at another time if the issue directly arises and the Court has the benefit of detailed and considered submissions regarding the same.

48 I do note, however, that the observations of Finn J in Re Gillie regarding the existence of an inferred power of the Court to order that execution of a judgment on a detinue claim be limited to only delivery up of the goods is supported by the terms of r 66.04 of the Rules. This is because r 66.04 specifically contemplates or allows for the prospect of a warrant of execution being issued for only delivery up of goods, or delivery up of goods or payment of their assessed value.

49 For completeness I mention a further matter. The authors of Civil Procedure Victoria state that, in order to obtain a judgment for delivery of goods without the alternative of the defendant paying their assessed value, the plaintiff must apply to the Court under r 21.04 of the Rules. Although this illustrates or underscores the important distinction between a right of a party to seek to enter judgment in default, as opposed to the right of a party to apply to the Court for judgment to be given in default, a further question may arise if such a course is followed in respect of a claim in detinue.

50 This is because the gateway for an application under r 21.03(1) of the Rules entitling a plaintiff to enter judgment in default of appearance is (in part) the existence of a claim '... made for the recovery of a debt, damages or any property ...'. However, the gateway for an application under r 21.04 of the Rules (which permits a court to give judgment for the plaintiff upon a statement of claim) is (in part) the existence of a claim made 'other than' for the recovery of a debt, damages or any property.

51 Consequently, it is not immediately apparent how r 21.04 of the Rules engages in the manner referred to by the said authors because a claim in detinue for delivery up of a chattel is a claim for the recovery of property, not an 'other than' claim.[40] This is also reinforced by the fact that the entitlement under r 21.03(d)(i) of the Rules is expressly provided for under r 21.03 of the Rules, therefore at least implying that such a claim is for recovery of property.

52 However, there is no application under r 21.04 of the Rules currently before the Court and it is therefore not necessary to take this aspect of the analysis any further for present purposes.

53 It is also relevant to note in this context that the authorities reveal that in an action for detinue where an order is sought for execution by only delivery up of the chattel, as opposed to delivery up of the chattel or payment of its assessed value, this is not something that a plaintiff is entitled to as of right, but involves the exercise of the Court's discretion as to whether or not such an order should be made. That this is so is initially evident from the terms of s 78 of the 1854 UK Act,[41] and has been addressed in various authorities including, for example, Gwinnett v Day,[42] Re Gillie[43] and McKeown v Cavalier Yachts Pty Ltd.[44]

54 Before directly addressing the Bank's Application in connection with the Excavator Delivery Up Order and the debt claim, it is first necessary to address the true nature of the Bank's claims that have led to the seeking of an order granting leave to seek to enter judgment in default of appearance for only delivery up of the Excavator.

55 This is necessary because, as is apparent from rr 21.03 and 21.04 of the Rules, the extent to which these rules engage is influenced by the character of the relevant claim or claims in question. As I have said, r 21.03 applies where '... a claim is made for the recovery of a debt, damages or any property, whether or not another claim is also made in the proceeding ...' and r 21.04 applies where '... a claim is made other than for the recovery of a debt, damages or any property, whether or not a claim for such recovery is also made in the proceeding ...'. It is again important to keep in mind in this context the important difference of the character of the act of entering judgment in default through the Prothonotary, and the giving of judgment by the Court, whether on application under r 21.04 of the Rules, or otherwise.

56 Plainly enough, the Bank's claims include claims for debt and damages, although the latter is not pressed for present purposes and may be put to one side.

57 Observations that can be made about the allegations in the Bank's statement of claim regarding the Excavator claim include the following:[45]

(1) It is alleged that it is a term of the Loan Agreement that, upon default, the Bank is entitled to take possession of and sell the Excavator.

(2) It is alleged that prior to 25 October 2024 the defendant had defaulted under the loan by reason of failing to pay moneys to the Bank on time and, as a result, the plaintiff is entitled to enforce its rights under the Loan Agreement.

(3) The notice of default relied upon in paragraph 7 of the statement of claim is alleged to relate to the outstanding arrears and constitute the relevant demand, but noting that the allegation does not address in any way the possession of the Excavator or other matters.

(4) Insofar as the claim to delivery up of the Excavator is based upon seeking to enforce obligations under the Loan Agreement in connection with a breach of contract claim,[46] it is not pleaded by the plaintiff that: the defendant is in possession of the Excavator; a demand has been made to deliver up possession of the Excavator; the defendant has breached the Loan Agreement by failing to deliver up the Excavator to the Bank; the Bank seeks specific performance of the Bank's claimed entitlement to take possession of and sell the Excavator; the Bank is and remains ready, willing and able to comply with its obligations under the Loan Agreement; or that specific performance of the Loan Agreement is sought in relation to the Excavator.

(5) Apart from the reference in paragraph E of the prayer for relief of the statement of claim regarding damages for 'detinue/conversion', the balance of the statement of claim makes no reference to a claim for specific performance or a claim in detinue.

(6) If the Bank intended to seek to bring a detinue claim against the defendant in respect of the Excavator in addition to, or in the alternative to, a claim to enforce the Loan Agreement through specific performance as a result of a breach of contract claim under the Loan Agreement, the statement of claim is materially deficient in this regard. For example, it does not plead that: the defendant is in possession of the Excavator; the Bank has an immediate right to possession of the Excavator; that the Bank has demanded delivery up of the Excavator; or that the defendant has failed to comply with any such demand.[47]

58 In light of the Bank's oral submissions during exchanges with the Bench at the Hearing, I proceed for present purposes on an assumption that the Bank's Excavator claims are intended to be for specific performance seeking to enforce obligations under the Loan Agreement, and for a claim in detinue.[48]

59 Insofar as the Application relates to the Excavator Delivery Up Order, the Application should be dismissed. Taking into account the matters referred to earlier in these reasons, my reasons for so concluding can be relatively shortly stated.

60 Insofar as the Bank's claim in relation to delivery up of the Excavator is a claim for specific performance, and putting to one side its defective pleaded form, such a claim is not of the character referred to in r 21.03 of the Rules but is a claim of the character referred to in r 21.04 of the Rules. Consequently, it would not be permissible or appropriate to grant leave to seek to enter default judgment for such a claim as there is no entitlement under r 21.03 to seek to enter judgment in default of appearance for a claim seeking specific performance. To the extent it was submitted otherwise, I do not accept that submission.

61 Further, and in any event, even if the entry of judgment in default of appearance for a claim for specific performance had been permitted by the terms and operation of r 21.03 of the Rules, I would decline to grant leave to enter default judgment in the manner sought in any event. This is because it is not clear from the allegations made in the statement of claim that such a claim is being made and, in any event, the defects in the statement of claim mean that it does not disclose a cause of action or put the defendant on notice of the claim relied on. Consequently, even if leave could be granted in respect of such kinds of claims, it would not be granted here because any judgment so entered would be irregular.[49] Further, it is also to be noted that the relevant relief sought in the prayer for relief is the 'composite' orthodox delivery up order referred to in r 21.03(d)(i) of the Rules, not an order only in respect of the delivery up of the Excavator.

62 I add that it appears that it would theoretically be open for the Bank to apply to the Court for default judgment for specific performance under r 21.04 of the Rules, because, if in fact the statement of claim pleads a claim for specific performance, it would be an 'other than' claim, meaning that r 21.04 of the Rules would apply. As I have said, under r 21.04 of the Rules, the Court may give judgment on the statement of claim where an application for judgment is brought in respect of claims 'other than' for the recovery of a debt, damages or property, which in my view includes a claim in contract for specific performance or, to take another example, a claim for a declaration. However, there is no such application before the Court and it is therefore not necessary for present purposes to extract or address the principles applicable to applications under r 21.04 of the Rules. That said, I refer for completeness to, and incorporate by reference, the discussion of these principles as set out in CTRC.[50]

63 Further, even if an application were later to be made by the Bank under r 21.04 of the Rules in respect of what may be contended is a specific performance claim in relation to the Excavator, given the terms of the statement of claim in its current form, and having regard to the relevant principles to be applied under r 21.04 of the Rules and addressed in CTRC, it seems inevitable that questions would arise as to whether any default judgment so entered would be irregular and therefore able to be set aside as of right. For present purposes it is not necessary to say anything further on this topic as there is no application under r 21.04 of the Rules before the Court.

64 Insofar as the Bank's claims do in fact include a detinue claim in respect of the Excavator, and again putting the material pleading deficiencies to one side for the moment, such a claim is 'for recovery of property', and the defendant has not filed an appearance, thereby engaging the Bank's entitlement under r 21.03(1)(d)(i) to seek to enter judgment for 'either' of the alternative forms of judgment stated in that sub‑rule. However, and as was ultimately accepted by the Bank, for a claim in detinue neither r 21.03(1)(d)(i) of the Rules, nor the form of judgment in Form 60L, contemplate or permit the entry of default judgment for only delivery up of goods - as opposed to (relevantly) the entry of interlocutory judgment in default for 'delivery of goods or their value to be assessed'.

65 So much is clear from the terms of r 21.03(1)(d)(i) of the Rules, which does not provide any entitlement to a plaintiff to enter judgment for the delivery of goods without the option of paying their value to be assessed. This is evident from the language of the rule, including the use of 'either' and 'or', as shown in italics in r 21.03(1)(d)(i) as follows:

(d) for the detention of goods, enter interlocutory judgment against that defendant -

(i) either for the delivery of goods or their value to be assessed or for the value of the goods to be assessed; and

(ii) if a claim is made for the recovery of damages for the detention of the goods, for the damages to be assessed.

66 To the extent that it was submitted that there is an inferred power or entitlement under the Rules to entitle a plaintiff to enter judgment in default on a detinue claim for delivery up of goods only, as opposed to the power of the Court to make such an order in connection with a warrant of execution, I do not accept that submission. There is no such inferred power or entitlement. Relevantly, for present purposes, the extent of the right of a plaintiff to enter judgment in default of appearance of the kind in question is expressly addressed and limited by r 21.03(1)(d)(i) of the Rules.

67 To the extent that it was submitted that the observations of the authors in Civil Procedure Victoria[51] about the existence of an inferred power of the Court to give judgment or make execution orders for only the delivery up of a chattel in connection with the tort of detinue support the Bank's contention that it may enter judgment in the present circumstances, I do not accept that submission. The observations made by the authors refer to an inferred power of the Court to give judgment for the delivery up of goods and depriving a defendant of the right to elect whether to deliver up the goods or pay their assessed value. The observations are not implicitly, or in terms, directed to a right of a plaintiff to enter judgment in such a way. But even if the observations had been so intended, then with respect, such observations would not be correct. I note further for completeness that the authors make clear more than once elsewhere in their commentary, and correctly, that r 21.03 of the Rules does not empower or entitle a plaintiff to enter judgment of the kind in question.[52]

68 Insofar as the Bank sought to rely upon the Court's power under r 22.13 of the Rules on a summary judgment application, this does not assist the Bank's position. This rule relates to a discretionary power of the Court once that discretion is enlivened on a summary judgment application. The existence of this rule provides no legitimate basis or parallel rationale for creating an entitlement for the Bank to enter default judgment of a kind that the rules expressly do not provide for. Again, the distinction between the entry of judgment and the giving of judgment is important, noting also that the entry of judgment does not involve the exercise of a judicial discretion.

69 To the extent that the Bank contended that the Court should grant leave to seek to enter judgment in default in respect of the delivery up of the Excavator by relying on or utilising r 1.15 of the Rules, on the basis that the relevant procedure is wanting or in doubt, I do not accept that submission. This contention can be crisply dealt with.

70 First, in relation to the entry of judgment in default of appearance under r 21.03 of the Rules, the procedure is not in doubt. The relevant rules operate in accordance with their terms and, among other things, do not permit a plaintiff to enter judgment of the kind sought in default of appearance. There is no room for r 1.15(1) to engage in the circumstances.

71 Second, even if it was assumed, for the purposes of argument, that some relevant procedure was not prescribed or was wanting, I would decline to exercise the Court's discretion in the way pressed for by the Bank. If there was a shortcoming of the kind referred to in r 1.15(1) regarding the procedure for determining how on a detinue claim the Court should address an application for judgment in default of appearance in respect of delivery up of a chattel so as to deprive a defendant of a right to pay its assessed value in lieu of such delivery up, the procedure I would have adopted would be different. The procedure would involve the entry of judgment in default in the permitted form and allow the Bank to apply to the Court for an order entitling the Bank to seek the issue of a warrant of execution for only the delivery up of the Excavator. In turn, this would involve the exercise of the Court's discretion in the relevant circumstances, which would include taking into account, among other things, the nature of the goods in question.

72 For the avoidance of doubt, I emphasise that the observations in the preceding paragraph are made in a detinue context only, and on a hypothetical assumed basis that the relevant procedure under r 21.03(1)(d)(i) of the Rules in connection with default judgment and the tort of detinue is relevantly wanting or in doubt. As I have said, this is not in fact the case.

73 Ultimately the Bank did not press its contention that the requirements of r 21.03(1)(d)(i) or Form 60L of the Rules should relevantly be dispensed with under r 2.04 of the Rules so as to permit the entry of judgment for delivery up of the Excavator only. This was a responsible position for counsel to take. If the point had been pressed it is clear that it would have been without merit. There is no sound basis in this case for dispensing with compliance of any relevant requirement of the applicable rules.

74 Finally on the topic of the Delivery Up Order, I do not accept the Bank's submission that the decisions of General Motors[53] and Bellinger[54] assist the Bank's position on the Application. A review of these decisions make this clear, and it is sufficient to observe that neither of these cases was addressing an entitlement of a plaintiff in a detinue claim to enter judgment in default of appearance. Rather, and relevantly, they were each addressing the Court's power to make orders in connection with, among other things, execution upon a judgment in detinue, and in so doing, addressed the original genesis of such a power, namely the enactment of s 78 of the 1854 UK Act. The reasons in each of these cases provide no support for a contention that there exists an inferred or some other right of a plaintiff in a detinue claim to enter judgment in default for only delivery up of goods without giving the defendant the option to pay the value of the goods assessed or to be assessed.

75 The observations made thus far primarily relate to the central issue raised, namely the application for leave to seek to enter judgment in the form of the Delivery Up Order in respect of the Excavator. The application for leave to seek to enter default judgment for the payment of the debt, interest, and costs is more straightforward.

76 I am satisfied on the material before me that the defendant was properly served, that it has failed to file an appearance, that the statement of claim sufficiently pleads for present purposes the debt claim, and that r 23(1)(a) is engaged. It is also apparent on the evidence that the defendant has not communicated at all with the Bank in connection with this proceeding or paid any amount in response to the demands made.

77 In the circumstances, it is appropriate to grant leave to the Bank pursuant to r 2.07(1) of the Miscellaneous Rules to seek to enter default judgment against the defendant for the debt claim regarding the payment of the debt, interest, and costs.

78 For the avoidance of doubt, I add that in the consideration of the issues on the Application and in the exercise of the Court's powers, I have had regard to the overarching purpose of s 7 of the Civil Procedure Act 2010 (Vic) (CP Act) as required by s 8 of that Act, and in so doing taken into account the objects in s 9 of the CP Act. Indeed, in my view, the conclusion reached well serves the overarching purpose.

79 Although not relevant to the determination of the merits of the Application, I note for completeness that I previously made some observations in RGV Transport about the Court's concern about small claims being commenced and proceeded with by the Bank in the Supreme Court rather than in more appropriate jurisdictions, including the Magistrates' Court and the County Court.[55]

80 From the time the writ was filed in this proceeding it was evident that the principal loan amount was only $98,395 and that the alleged total amount outstanding at 28 March 2025, which was shortly before the filing of the writ and statement of claim, totalled $110,926.99. In relative terms this is a very small claim for this Court. On the material currently before me, it is evident that this proceeding could have and should have been commenced and proceeded with in the County Court of Victoria. I refer again to the observations made in RGV Transport[56] in this context. Although I do not propose to seek any submissions or take any further steps in relation to these matters as things stand, the practitioners and the Bank should ensure that careful and appropriate consideration is given to relevant matters, including obligations under the CP Act, if circumstances arise in the future where decisions are to be made about the commencement of relatively small claims in this Court.

81 For the avoidance of doubt, these observations are not intended to, and do not, convey any view, finding or suggestion that any relevant obligation has been breached by the Bank or any practitioner in this case, although they underscore the importance of keeping a live eye on the issue.

82 Although I propose to grant leave to the plaintiff to seek judgment in default of appearance in respect of the debt claim earlier mentioned, and subject to hearing any submissions to the contrary, my preliminary view is that it is just and appropriate to make a further order limiting the amount of costs to be allowed in favour of the Bank on the entry of any judgment to the amount of costs that would have been allowed if the Bank had commenced the proceeding in the County Court and sought to enter the same judgment in default in the County Court.

83 Further, because the majority of the time, cost and engagement with the Application was primarily concerned with the Excavator issue, which from the Bank's perspective was unsuccessful, subject to hearing and considering any submissions to the contrary, I also propose to order that the Bank bear 50% of its own costs of and incidental to the Application, but that the balance of such costs be the Bank's costs in the proceeding.

84 For completeness I add that it will be apparent that I accepted the Bank's submissions that it was appropriate for the current application to be determined by this Court, rather than having the proceeding first transferred to the County Court. Whilst this occurred in the light of the particular circumstances and history of this case, it ought not to be presumed that this position would be followed in this Court in future. Should an issue of this character arise again it will be a matter for the Court to consider in the light of the then prevailing circumstances.

85 For the reasons referred to above I propose to make orders to the following effect:

(1) Subject to paragraph 2 of these orders, the plaintiff has leave pursuant to r 2.07 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) to seek to enter judgment in default of appearance in respect of the debt, interest and costs claims referred to in the plaintiff's statement of claim.

(2) If the plaintiff seeks to enter judgment in default of appearance in respect of the claims referred to in paragraph 1 of these orders, any amount allowed in the judgment for costs shall not exceed the amount of the costs that the plaintiff would have been allowed if the plaintiff had commenced the proceeding in the County Court of Victoria and had entered the same judgment in default of appearance against the defendant in that court.

(3) The Application is otherwise dismissed.

(4) The plaintiff shall bear 50% of its own costs of and incidental to the Application, but the balance of such costs shall be the plaintiff's costs in the proceeding.

[1] Emphasis added, as is also the case in the balance of these reasons whenever the words enter, apply, give, entered, or given are italicised.

[2] But without limiting the more detailed reasons that follow, which should be read together with this very brief overview observation.

[3] As observed by McInerney J in The City Mutual Life Assurance Society Ltd v Giannarelli [1977] VicRp 53; [1977] VR 463, 469, '... the entry of judgment in default of appearance is an act of merely ministerial character' ... and 'cannot be regarded as being, or as being equivalent to, a judge in the exercise of powers committed to him [or her] in relation to the trial.' See also Bass Coast Council v Hollole [2017] VSC 803, [1] (Mukhtar AsJ).

[5] Williams, Civil Procedure Victoria [I 21.07.10], [I 21.07.15], [I 21.07.65] and the cases there cited.

[6] Williams, Civil Procedure Victoria [I 21.07.65] and the cases there cited.

[7] [2021] VSC 458.

[8] [2025] VSC 263.

[9] [2025] VSC 345.

[10] Paragraph 16.5 of Commercial Court Practice Note SC CC 1 previously reinforced the position by providing that judgment may not be entered administratively in a proceeding within a Commercial List unless the List Judge gives leave to do so, although this additional note does not appear in the revised version of the Practice Note. This paragraph read: 'Judgment may not be entered administratively in a proceeding within a Commercial List unless the List Judge gives leave to do so.'

[11] In the context of an indorsement of claim see Buttigieg v VL Finance Pty Ltd [1986] VicRp 39; [1986] VR 392.

[12] [2025] VSC 327, [18]-[20] (Connock J).

[14] Williams, Civil Procedure Victoria, [I 21.03.130].

[15] [2002] VSC 180, [38].

[16] General and Finance v Cooks Cars [1963] 2 All ER 314.

[17] [2025] VSC 327, [18].

[18] [2025] VSC 327.

[19] [1971] VicRp 90; [1971] VR 734 (McInerney J).

[20] [1962] VicRp 72; [1962] VR 514 (Herring CJ).

[21] See paragraph E of the prayer for relief to the statement of claim.

[22] RP Balkin and JLR Davis, Law of Torts, 5th ed, LexisNexis Butterworths, 2013, 101 [4.54], and the cases there cited. See also Sappideen and Vines, Fleming's The Law of Torts, 10th ed, Lawbook Company, 66 [4.50] and the cases there cited, and Vout P, Torts: The Laws of Australia, 3rd ed, 2009, 599-604 [33.8.910-33.8.960].

[23] RP Balkin and JLR Davis, Law of Torts, 5th ed, LexisNexis Butterworths, 2013, 101 [4.54], and the cases there cited.

[25] [1899] NSWLawRp 24; (1899) 20 LR (NSW) 190.

[26] So much has been addressed in numerous authorities, including for example: Bailey v Gill [1919] 1 KB 41, 43 (Rowlatt J); General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314; [1963] 1 WLR 644, 650 (Diplock LJ); General Motors Acceptance Corporation of Australia v Davis [1971] VicRp 90; [1971] VR 734, 738-740 (McInerney J); McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303, 307 (Young J); Re Gillie; Ex Parte Cornell [1996] FCA 1877; (1996) 150 ALR 110, 114-115 (Finn J); Tuohey v Tuohey [2002] VSC 180, [38] (McDonald J); Gwinnett v Day [2012] SASC 43, [56] (Stanley J).

[27] [1996] FCA 1877; (1996) 150 ALR 110, 114-115 (Finn J).

[28] Rules 23.01(1)(d) and 66.04 of the Supreme Court General Rules of Procedure in Civil Proceedings 1996 (Vic) are substantially identical to those in the Supreme Court (General Civil Procedure) Rules 2025 (Vic).

[31] See, for example, the observations of Finn J above and the cases there cited and also Bailey v Gill [1919] 1 KB 41, 43 (Rowlatt J).

[33] [1919] 1 KB 41.

[34] [1919] 1 KB 41, 43.

[35] [1971] VicRp 90; [1971] VR 734 (McInerney J).

[36] Williams, Civil Procedure Victoria, [I 21.03.130]-[I 21.03.150] and the cases there cited.

[37] Williams, Civil Procedure Victoria, [I 66.04.0] and the cases there cited.

[39] General and Finance Facility v Cooks Cars (Romford) Ltd [1963] 2 All ER 314; [1963] 1 WLR 644, 650 (Diplock LJ). See also, JD Heydon, MJ Leeming, and PG Turner, Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 5th ed, Ch 22.

[40] Which is apparent from the nature of the tort. See also Bellinger v Autoland Pty Ltd [1962] VicRp 72; [1962] VR 514, 519-‍520 (Herring CJ).

[41] I refer to the words '... if they or he see fit to do so ...'. See paragraph 35 above.

[42] [2012] SASC 43, 56-59 (Stanley J).

[43] [1996] FCA 1877; (1996) 150 ALR 110, 114-115 (Finn J) and the cases there cited.

[44] (1988) 13 NSWLR 303, 307-309 (Young J).

[45] I hasten to add that counsel appearing for the Bank at the Hearing is not recorded as the draftsperson of the statement of claim, which appears on its face to have been prepared without the assistance of counsel.

[46] Which would require a claim for specific performance.

[47] I refer in this context to the earlier observations about the entry of irregular judgments, including where a statement of claim does not disclose a cause of action.

[48] It was not submitted (or otherwise apparent) that the Bank was making, or was seeking to rely upon, a claim for specific restitution in equity so I shall say no more on the topic, save that no different result would have followed even if that was so. As to specific restitution in equity, see generally JD Heydon, MJ Leeming, and PG Turner, Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 5th ed, Ch 22.

[50] [2025] VSC 345, [32]-[37] (Connock J).

[51] Williams, Civil Procedure Victoria, [I 21.03.130].

[52] Williams, Civil Procedure Victoria, [I 21.03.135].

[53] [1971] VicRp 90; [1971] VR 734 (McInerney J).

[54] [1962] VicRp 72; [1962] VR 514 (Herring CJ).

[55] RGV Transport Pty Ltd [2025] VSC 327, [18].

[56] [2025] VSC 327, [18].

[57] At the Hearing counsel informed the Court that no submissions were going to be made against the costs orders proposed.