RCW Investments v Back

1. The defendant is seeking to set aside judgment entered against him after he failed to comply with a court order to produce documents, and to file and serve further and better particulars of his defence, by a certain time.
2. On 8 January 2025, orders were made by consent (the 8 January orders). They included an order requiring the defendant, by 4 pm on 14 January 2025, to file and serve further and better particulars of his defence dated 18 October 2024 (Defence), and to produce documents the plaintiffs had sought pursuant to a notice to produce. They also included a self-executing order that if he did not provide those particulars, and produce the documents by that time, the Defence would be struck out, and the plaintiffs could then apply to enter judgment.
3. The defendant failed to comply with the 8 January orders. He did not provide the particulars or produce the documents, the Defence was then struck out, the plaintiffs applied for judgment, and judgment was entered against the defendant.
4. The defendant applied to have that judgment set aside, pursuant to Rule 24.06 of the County Court Civil Procedure Rules 2018 (the Rules). This County Court Rule is the same as Rule 24.06 of the Supreme Court (General Civil Procedure Rules) 2015.
5. That application came on before a judicial registrar, who refused to set aside the judgment.
6. The defendant then applied for judicial review of that decision, and that application is what is before me.
7. The application raised the issue of the correct test to be applied in an application under Rule 24.06, to set aside a judgment entered following a defendant's non-compliance with a court order to provide particulars, discovery or answers to interrogatories. The defendant submitted that the merits of the defence are not relevant to a Rule 24.06 application to set aside judgment (unlike a Rule 21.07 application to set aside a default judgment). The plaintiffs submitted that the defendant's prospects of success are relevant to the exercise of the discretion to set aside judgment under Rule 24.06.
8. In my view, in considering an application under Rule 24.06 to set aside judgment, it is necessary for the Court to be satisfied, amongst other things, that a defendant has real prospects of success in establishing his defence.
9. For the reasons I explain, I am satisfied that the defendant has real prospects of success in his defence to one of the claims against him, but not the other claims.
10. I will make orders accordingly, so that judgment entered against the defendant, as to the claims where I find that he does not have real prospects of success, remains, but judgment is set aside as to the one claim where I find that he does have real prospects of success.

1. On 2 May 2024 this proceeding was commenced by the first plaintiff, RCW Investments Pty Ltd, and the second plaintiff, Mrs Elaine Margaret Walters (Mrs Walters), against the defendant, Stephen James Back. After Mrs Walters died, her executor, Mr Mark Frisby, was substituted as the second plaintiff.
2. The plaintiffs filed an amended statement of claim on 1 October 2024.
3. On 18 October 2024, the defendant served the Defence, filing it on 7 November 2024.
4. On 30 October 2024, the plaintiffs served a notice to produce pursuant to Rule 29.10, requiring production of documents referred to in the Defence. The Rules require compliance within 7 days.
5. They also served a request for further and better particulars of the Defence. Orders made on 26 September 2024 required the defendant to answer the request for within 21 days.
6. The defendant did not provide the documents, or the further and better particulars.
7. The plaintiffs filed a Request for Interlocutory Determination to seek an order compelling the defendant to comply.
8. The 8 January orders were then made, by consent. They provided:

1. By 14 January 2025 at 4.00pm, the defendant must comply with the plaintiffs' notice to produce dated 30 October 2024. 2. By 14 January 2025 at 4.00pm, the defendant must file and serve a response to the plaintiffs' request for further and better particulars dated 30 October 2024. 3. Paragraphs 1 and 2 of these orders are self-executing orders. If the defendant fails to comply with paragraph 1 and/or 2 above, the defendant's defence will be struck out and the plaintiffs will be at liberty to enter judgment in default of defence, without any requirement to file and serve a notice in Form 21A. 4. Any application by the plaintiffs for the entry of judgment in default of defence in accordance with paragraph 3 above must be supported by an affidavit deposing to any failure by the defendant to comply with paragraphs 1 and/or 2 above.

9. The ordered time for the defendant to comply with paragraphs 1 and 2 of the orders (4 pm on 14 January 2025) came, and went, without the defendant complying.
10. As to the requirement to comply with the plaintiffs' notice to produce, some attempt had been made to comply that day. The defendant's solicitor had attempted to serve documents produced by the defendant pursuant to the notice to produce (NTP documents), at 10.32 am that day (14 January), by attempting to send an email to the plaintiffs' solicitor, but the email was not received by the plaintiffs' solicitor.
11. At 6 pm on 14 January (so two hours late) the defendant's solicitor sent an email to the plaintiffs' solicitor, which incorporated an electronic link to the NTP documents he had earlier tried to email as attachments. He wrote saying that attempts had been made to email the NTP documents, but 'due to the large file size they have been bouncing back'.
12. As to the requirement to file and serve a response to the request for further and better particulars of the Defence, it is clear no attempt was made to file and serve the further and better particulars on 14 January.
13. Confusingly, the defendant's solicitor Nicholas Agetzis swore that the further and better particulars were in fact provided on 14 January 2025 (paragraph 5 of his 9 April 2025 affidavit). However, the defendant, in his affidavit sworn 11 June 2025, said it was he who had provided the Google Drive link containing the NTP documents to his solicitor, and in doing so, he had not uploaded the further and better particulars to Google Drive. Rather, he asked Mr Agetzis to ask for an extension of time for filing the particulars:

[49] On or around 14 January 2025, Mr Agetzis informed me that he had been unable to send the documents in response to the notice to produce to the plaintiffs' lawyers, given the size of the documents. On that basis, Mr Agetzis asked me to upload the documents to Google Drive and provide him with a copy of the link, so that he could provide it to the plaintiffs' solicitors. > > [50] On or around 14 January 2025 I instructed Mr Agetzis to seek an extension for the filing and service of the further and better particulars as we had not finished finding all the documents for discovery. > > [51] On or around 14 January 2025 I provided a Google Drive link with all of the documents to Mr Agetzis. I confirm I did not upload the futher and better particulars to Google Drive.

14. An automatic reply to the email sent at 6 pm on 14 January was sent from the plaintiffs' solicitor's email. It said that the plaintiffs' solicitor (Ms Hui Meng Ong) was on leave, and overseas, returning to work on 28 January 2025 and may not have access to her emails in the meantime.
15. On 15 January 2025, the defendant's solicitor wrote to the plaintiffs' solicitor seeking an extension of time to provide the further and better particulars, until after discovery was completed.
16. On her return from leave, on 28 January 2025, the plaintiffs' solicitor replied. She first sent an email seeking a password, to be able to access the NTP documents sent via the electronic link on 14 January 2025. She then sent another email, saying she did not agree to the further and better particulars being provided after the completion of discovery, as it was contrary to the 8 January orders. Her email included the following:
    1. ... unless a new workable link to the documents referred to below is provided and response is filed and served by no later than Friday 31 January 2025, I have instructions to make an application seeking entry of default judgment against your client; [3] of the said Orders.
17. On 31 January 2025, the defendant's solicitor replied, saying that the electronic link had originally been provided by the defendant himself, and that the defendant's solicitor had now requested that the defendant give access to it. The defendant then provided a new link, which included the NTP documents, and also now included the further and better particulars (which were dated 14 January 2025). His solicitor sent this to the plaintiffs' solicitor.
18. At that point - 31 January - the plaintiffs were finally able to access the NTP documents, and were served with the further and better particulars.
19. On 5 February 2025, the plaintiffs' solicitor wrote raising various issues as to both the sufficiency of the NTP documents, and the accuracy of the further and better particulars, stating:

... unless satisfactory and complete responses with relevant documents pursuant to the Request for Further and Better Particulars of the Defence and Notice to Produce both dated 30 October 2024 are provided by no later than 14 February 2025, an application will be made to strike out the defence.

20. Between 7 and 10 February 2025, the parties corresponded about mediation, agreeing to it occurring on 3 March 2025.
21. Both parties served affidavits of documents on 14 February 2025.
22. On 17 February 2025, the plaintiffs' solicitor wrote identifying deficiencies in the defendant's discovery, and saying that, unless proper and complete discovery was given by 20 February 2025, an application regarding the failure to comply with discovery, under Rule 29.05(1), would be issued.
23. The plaintiffs then applied for judgment pursuant to the 8 January orders (without notifying the defendant of that application). The plaintiffs' solicitor, Ms Ong, swore an affidavit dated 19 February 2025. In it, she detailed that paragraphs 1 and 2 of the 8 January orders had not been complied with by 4 pm on 14 January 2025, and referred to some of the correspondence between solicitors after that (up to 5 February 2025).
24. On 21 February 2025, the defendant's solicitor wrote to the plaintiffs' solicitor, saying that the defendant had no further documents in his possession, power or control, and suggesting adjourning the mediation if the plaintiffs proposed to make another interlocutory application.
25. Then, on 24 February 2025, default judgment was entered against the defendant. He was ordered to pay to the first plaintiff $124,823.41 and interest of $10,088.46, to the second plaintiff $671,863.00 and interest of $46,230.12, and to pay costs of $5,018.20.
26. The plaintiffs' solicitor then emailed the defendant's solicitor to advise that judgment had been entered.
27. The following day, 25 February 2025, the defendant applied to set aside the judgment.
28. Three affidavits in support of the defendant's application were filed for the defendant, sworn by his solicitor, Mr Nicholas Agetzis. They dealt with the emails sent (or attempted to be sent) on 14 January 2025 and with various correspondence between the solicitors thereafter. None went to the merits of the defence. Rather, the defendant's solicitor asserted that the defendant had complied with the 8 January orders before the time expired on 14 January, that entry of judgment was irregular, and that the plaintiffs should not have 'snapped on' judgment without notice to the defendant, when the defendant was continuing to engage with the plaintiffs in the proceeding after 14 January.
29. The application to set aside the default judgment was heard on 11 April 2025 before Judicial Registrar Muller. He refused to set aside the default judgment, in part because the defendant had not filed any material establishing a defence on the merits. (At that hearing, counsel for the defendant first submitted it was not necessary to file such material in support of an application to set aside judgment entered under Rule 24.06, and then, later in the hearing, orally applied for leave to file an affidavit on the merits later that day. The application to file an affidavit on the merits later that day was refused.)

1. On 24 April 2025, the defendant filed a notice seeking review of the judicial registrar's decision not to set aside the judgment.
2. That application came on before me, on 25 July 2025.
3. The plaintiffs rely on affidavits of their solicitor, Ms Ong, of 19 February 2025 (filed in support of the default judgment), 7 April 2025, 10 April 2025, 21 July 2025 and 25 July 2025.
4. The defendant relies on affidavits of his solicitor, Mr Agetzis, sworn 25 February 2025, 1 April 2025, 9 April 2025 and 11 June 2025; on affidavits of the defendant sworn 11 June 2025 and 24 July 2025; and on an affidavit of James Greentree sworn 30 July 2025.
5. The plaintiffs filed written submissions dated 22 July 2025 (updating submissions made on 8 April 2025), and 29 July 2025; the defendant relies on submissions dated 10 April 2025, 10 June 2025, 24 July 2025, 28 July 2025 and 30 July 2025.
6. The defendant filed written submissions dated 10 April 2025, 10 June 2025, 25 July 2025, 28 July 2025, and 30 July 2025.
7. Oral submissions were made at the hearing.
8. Following the hearing, further submissions and affidavits were filed on discrete points, and a proposed amended defence (PAD) was exhibited to the Greentree affidavit sworn 30 July 2025.
9. The defendant's notice seeking review states that the defendant seeks review of the whole of the judicial registrar's determination, on the grounds that, in making the determination:

(a) the judicial registrar erred by applying the incorrect test for determining whether to set aside the plaintiffs' default judgment against the defendant;

(b) the judicial registrar erred by erroneously taking into account his assessment of the merits of the defendant's case;

(c) the judicial registrar denied the defendant procedural fairness by refusing to provide him with additional time to file and serve further affidavit material addressing the merits of his case; and

(d) the judicial registrar's determination was unreasonable and plainly unjust.

1. In place of the judicial registrar's determination, the defendant seeks an order setting aside the judgment.
2. The plaintiffs resist the defendant's application on the following bases:

(a) the defendant has still not properly complied with the self-executing orders that led to the defence being struck out;

(b) the defendant has failed to comply with his discovery obligations; and

(c) the defendant's defence has no real prospect of success.

1. An application to review a determination of the Judicial Registrar is made under Rule 84.03. It is treated as a de novo hearing, so I am not limited to the reasons given by the Judicial Registrar: Rule 84.06. I can confirm, set aside, or vary his determination: Rule 84.07(b).

RULE 24.06 APPLICATION TO SET ASIDE JUDGMENT - RELEVANT MATTERS

1. As discussed above, when the defendant failed to comply with the 8 January orders, the Defence was then struck out, the plaintiffs applied for judgment to be entered (as the 8 January orders provided for), and judgment was entered.
2. Rule 24.02 provides:

(1) Where a party fails to comply with an order to give particulars or any pleading or with an order for the discovery or inspection of documents or answers to interrogatories, the Court may order - > > (a) if the party is the plaintiff, that the proceeding be dismissed; > > (b) if the party is the defendant, that the defendant's defence, if any, be struck out. > > (2) A defendant whose defence is struck out in accordance with paragraph (1)(b) shall, for the purpose or Rule 21.02(1) be taken to be a defendant who, being required to serve a defence, does not do so within the time limited for that purpose.

3. Rule 21.02(1) - referred to in Rule 24.02(2) - permits a plaintiff to apply for or enter judgment where no defence has been served within the time limited for doing so.
4. Rule 24.06 provides:

The Court may set aside or vary - > > (a) any order under this Order or an order referred to in Rule 24.05; > > (b) a judgment entered or given upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step.

5. In Jorgensen v Slater & Gordon Pty Ltd [2008] VSCA 110, the Court of Appeal considered the proper bases for a determination as to whether judgment should be set aside, in a Rule 24.06 application. It said that the court has a wide discretion to relieve a party of the consequences of non-compliance with a self-executing order; the governing consideration is what justice requires; and the power to relieve must be exercised with care: see Jorgensen [9,10].
6. Citing MTQ Holdings Pty Ltd v Lynch & Ors [2007] WASC 49, [55], the Court of Appeal specified that the court must have regard to 'at least' the following matters (see Jorgensen [11]):

(a) The circumstances in which the self-executing order was made;

(b) The reasons for non-compliance with it;

(c) The prejudice to the defaulting party if relief were not granted; and

(d) The prejudice to the innocent party if relief were granted.

(a) Circumstances in which self executing order was made

1. The defendant did not file and serve the further and better particulars (and NTP documents) by 4 pm on 14 January 2025.
2. The Defence was then automatically struck out by operation of paragraph 3 of the 8 January orders.

1. The plaintiffs argue the defendant did not satisfactorily explain the non-compliance. I agree.
2. I am satisfied that the delay in relation to the provision of further and better particulars was caused by deliberate disregard or indifference by the defendant to the 8 January orders. No attempt to file and serve the further and better particulars that day was made. The following day, a request for further time to serve the further and better particulars was sent, and the further and better particulars were finally served on 31 January. The particulars were not filed till months later.
3. The NTP documents were provided on 14 January 2025 just two hours late, after an attempt to send them earlier had been made. I am not satisfied that this delay was caused by deliberate disregard or indifference by the defendant to the 8 January orders.
4. I take into account that by the time of the application to set aside judgment (and indeed before default judgment had been entered) the defendant had completed the steps required under the 8 January orders.
5. The plaintiff complains, with good reason, that what the defendant belatedly provided was inadequate: inaccurate and incomplete particulars were given (which were not responsive to the request) and insufficient documents were provided in answer to the notice to produce.
6. However, I am satisfied that the defendant provided the NTP documents, and the further and better particulars, in good faith and as a genuine response to the order they be provided. A defect in what is provided does not obviate the fact good faith compliance has occurred: see Ridge Lane Pty Ltd v Gadzhis [2007] VSC 212, per Hargrave J at [40], [42]. To the extent they are inadequate the plaintiffs may take further steps under the Rules.
7. The plaintiffs also complain that discovery provided by the defendant on 14 February 2025 was inadequate. However, judgment was not entered due to inadequate discovery. If it was inadequate, that is irrelevant to this application. The plaintiffs may take other steps in relation to inadequate discovery under the Rules.

(c) Prejudice to defaulting party if relief not granted

1. If judgment is not set aside, the potential prejudice to the defendant who will be left with judgment entered against him without the opportunity to defend at trial, is obvious.
2. However, whether there are real prospects of success of the defence is a relevant and important consideration in assessing this prejudice.
3. In Durney v Deakin University; Durney v Victoria University [2016] VSC 418 at [60], John Dixon J, dealing with an application by a plaintiff to set aside orders made as a result of the plaintiffs' default, considered it relevant that there was 'no real prospect that a court would grant the relief [the plaintiff] seeks in each of the proceedings.'
4. The defendant submitted that Durney concerned a unique factual scenario, and does not represent authority that whether a defendant has a real prospects of success of his defence should be considered in a Rule 24.06 application.
5. However, as a matter of logic, the question of whether a defendant has real prospects of successfully defending the proceeding is relevant to the question of what prejudice they will suffer if they are deprived of the opportunity to do so. (And, on the other hand, relevant to the question of the prejudice the non-defaulting party will suffer if the judgment is set aside.) It is clearly relevant to the discretion under Rule 24.06, as to whether to set aside an order dismissing a proceeding, or set aside judgment entered, as a result of a party disobeying court orders, if there is no real prospect the defaulting party would be successful in the proceeding - whether as a plaintiff bringing a claim (as per Durney), or as a defendant raising a defence. That prejudice is one of the matters raised in Jorgenson, citing MTQ Holdings.
6. The defendant refers to the fact that the Court of Appeal did not consider the prospects of success of the defence in Jorgenson. However, that case involved an appeal, with a self-executing order made against the appellant concerning the filing of an appeal book, which led to the appeal being dismissed. The appellant was described as a 'serial defaulter'. The defaults were so ongoing and serious that they were the factors that the Court dwelt on in its decision not to set aside the order dismissing the appeal.
7. Other examples of cases where the prospects of success of the defence was not discussed, which clearly concentrated on other aspects relevant to the discretion to set aside a judgment entered following disobedience of a court order, include Brakateselos v ABL Nominees Pty Ltd & Ors [2012] VSCA 231, Re Saeco Australia Pty Ltd [2010] VSC 161, and Ridge Lane.
8. In Damleigh Capital Pty Ltd. & Ors v CVS Lane Capital Partners Pty Ltd & Ors [2024] VSC 410, Cosgrave J referred to a relevant factor being whether the defaulting party has a reasonably arguable case or defence, saying:
   1. The nature of a self-executing order is such that:
      • the starting point of the discussion is that the defaulting party should establish why it is appropriate that it be allowed to continue the proceeding notwithstanding the non-compliance with the court order.
      • such peremptory orders are made to be obeyed so the defaulting party should strive to show that:
        • the non-compliance was not intentional or deliberate; and
        • the failure to comply was due to circumstances outside the party's control.
   2. Ultimately, the Court has to examine the circumstances of each case to give effect to the governing consideration of what the justice of the situation requires. That means that the Court must exercise its discretion unfettered by conditions or guidelines referred to in other cases. A court is to examine the individual merits of each case with sufficient flexibility to safeguard the administration of justice while making due allowance in appropriate circumstances for matters such as accidents, errors and unexpected events.
   3. Another relevant factor is whether the defaulting party has a reasonably arguable case or defence. There is no point in reinstating a proceeding in which the defaulting party's claim or defence is so weak or devoid of merit that it is bound to fail. However, the fact that a party's position has merit cannot necessarily save the party from the consequences of failing to comply with the Court's order.
9. I note that Rule 24.02(b) makes clear that a defendant whose defence is struck out for failing to comply with an order to give particulars (relevantly) is taken to be a defendant who did not serve a defence within the time limited under Rule 21.02(1). And a defendant who applies to set aside a defence entered in default under Rule 21.02, applies under Rule 21.07, and must show a defence on the merits as one of the factors before that judgment is set aside.
10. Whether a defence has real prospects of success is the same test as that considered when a plaintiff brings a summary judgment application against a defendant: see s 61 - s 64 of the Civil Procedure Act 2010 (Vic).

(d) Prejudice to innocent party if relief granted

1. From the perspective of the plaintiffs, to the extent judgment is set aside, of course they are prejudiced. They have lost an earlier trial date, and incurred costs as a result of the entry of judgment and its setting aside. However, the loss of the earlier trial date was a risk taken in entering default judgment (knowing applications to set aside are often made). The costs thrown away can be dealt with in the orders made on setting aside.

Leave to rely on affidavits that were not before judicial registrar

1. The defendant seeks to rely, as to the merits of his defences, on affidavits that were not filed when the hearing before the judicial registrar occurred. The plaintiffs object to that.
2. The application to set aside the judgment before the judicial registrar was heard without any affidavit on the merits having been filed. He refused to set aside the default judgment, in part because no defence on the merits had been shown on the material that was before him.
3. After filing the notice seeking review of that decision, the defendant then filed his affidavits of 11 June 2025 and 24 July 2025, setting out the defences he claims. The plaintiffs oppose him having leave to rely on his affidavits, in circumstances where they say he has not explained why he did not rely on it before the judicial registrar.
4. However, the failure to file an affidavit on the merits initially clearly occurred in circumstances where the defendant sought to persuade the court to overturn the default judgment on the basis that it was not necessary to show a defence on the merits in an application under Rule 24.06. This is apparent from the defendant's initial written submissions and the transcript of the hearing before the judicial registrar.
5. When it became apparent that the judicial registrar did consider it necessary to show a defence on the merits, counsel for the defendant then asked for leave to file a defence on the merits later that day. Leave was not given.
6. Subsequently, after the Notice Seeking Review was filed, the affidavits on the merits of the defence were filed and served.
7. I do not consider that the failure to give an explanation as to why those affidavits were not filed earlier should prevent the defendant from relying on them at the review hearing, in those circumstances.
8. I give leave for him to rely on them, under Rule 84.03(8).
9. I turn now to the defences raised in relation to the claims made by the plaintiffs.

1. The second plaintiff claims $72,000 from the defendant. He claims that Mrs Walters provided the defendant, as her agent, with a cheque for $300,000 to purchase a property at 24 Malcolm Road, Langwarrin; the defendant paid the vendor of the property the deposit for that purchase, of $228,000; and the defendant has unlawfully retained the balance of $72,000.
2. The defendant defended this claim on the basis that he was entitled to retain this as a real estate commission for the sale of the property (and for minor related expenses).
3. However, the defendant does not have any entitlement to retain commission, because he did not comply with the requirements of the Estate Agents Act 1980 (Vic) in relation to the buyer's agency authority provided to Mrs Walters.
4. As the plaintiffs submit:

1. In respect of the deposit claim, the defendant has made discovery of a draft buyer's agency authority and an email sent on 1 February 2020 referring to the authority as having been signed in November 2019. The draft buyer's agency agreement contains the following after the heading 'Rebate Statement': 'The agent will not be and is not likely to be entitled to any rebates. A rebate includes any discount, commission, or other benefit, and includes non-monetary benefits.' That statement is identical to the form of words which was impugned in Advisory Services Pty L_td_ v Augustin [2018] VSCA 95: it does not comply with the requirements of subsections 49A(4)(c), as it does not convey the information that the agent is not entitled to retain any rebate and must not charge the client an amount for any expenses that is more than the cost of those expenses. As the authority does not comply with section 49A of the Estate Agents Act 1980, the defendant is not entitled to claim a commission or outgoings. 2. The defendant cannot avail himself of subsection 49A(6) of the Act as, on his own case, the authority was signed after 25 September 2018, the date of the Royal Assent of the Justice Legislation Miscellaneous Amendment Act 2018.

5. The defendant ultimately accepted that the principles set out in Advisory Services Pty Ltd v Augustin [2018] VSCA 95 determines this issue, and that he is not entitled to retain any commission in respect of the sale of the property.
6. He nonetheless seeks leave to defend this part of the claim, relying on s 64 of the Civil Procedure Act 2010, which provides

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

(a) It is in the interests of justice to permit the defendant to defend that part of the claim because doing otherwise would result in the bifurcation of any liability which he may have in respect of the balance of the plaintiffs' claims. It would be unjust for him to have to address a judgment for one sum while continuing to dispute a further claim against him in the same proceeding. > > (b) If the issue is clear, it will cause no additional cost or delay in preparing for or hearing the trial.

2. I will not give leave to defend this claim (set aside the default judgment in relation to it). 'Bifurcation of liability' is not uncommon where multiple claims are brought. Often summary judgment is given for one claim in a statement of claim, and the rest of the claims continue to trial.
3. It would not be in the interests of justice to leave this claim for trial when there is no defence to it.
4. The defendant next seeks a stay on enforcement, on the basis that he says the situation is analogous to Rule 63A.20.1, which provides that an interlocutory order for costs shall not be taxed until the proceeding is completed unless the Court orders otherwise.
5. This situation is not analogous. The rationale for Rule 63A.20.1 is to avoid multiple taxations, and attendant costs, by having interlocutory applications used as a means to exhaust the funds of an opposing party, and to avoid unfairness in a case where, for example, a party who is ultimately successful is unable to set off their judgment against an earlier liability to pay costs.
6. That has nothing to do with judgment being due on a claim now.

1. The first plaintiff, RCW, claims that it retained the defendant as managing agent of a Mornington unit. It claims that on 25 May 2023 the defendant, as its agent, received rent of $112,867 from the tenant of Lot 11, 315 Main Street, Mornington on 25 May 2023 and has failed to account to it for this amount. It also claims that the defendant has retained a bond of $11,956.41 paid by that tenant on 10 June 2014, and has unlawfully refused to pay that money to RCW.
2. The defendant admitted that he was retained as the managing agent.
3. He defends the claim in three ways.
4. For the reasons that follow, I am not satisfied that these defences have real prospects of success of this defence.

1. The first of the defendant's defences to this claim relates to Beleura Solutions Pty Ltd, a company through which he conducted some business.
2. In PAD [3A], the defendant pleads that ,since 11 February 2020, Beleura has held an estate agent's licence under the Estate Agents Act 1980 (Vic), the defendant has been the licenced agent in effective control of Beleura, and the defendant has conducted business through Beleura.
3. The defendant pleads that on 19 January 2023 (that is, before the tenant paid money on 25 May 2023) the first plaintiff, RCW, had entered an assignment agreement whereby it agreed to assign the tenant's debt to Beleura (and so the defendant is not liable to repay it).
4. At 6(h) of the PAD, the defendant pleads:

(h) On or around 19 January 2023, in consideration of Back or Beleura Solutions not pursuing RCW for payment of the management fees, RCW agreed to assign the Tenant's debt to Belura [sic] Solutions...

1. I do not consider there are real prospects of success of this defence.
2. Firstly, it is premised on discussions having occurred about the assignment between Mrs Walters and 'Back, on behalf of Beleura' and pleaded to be inferred on a basis which includes that Beleura would not seek to recover management fees from RCW (see PAD: particulars paragraph 6(h) to [6(i)]).
3. I agree with the plaintiffs' submissions:

2. The purported assignment agreement is pleaded in paragraph 6(h) of the PAD. It is alleged to have been made on 19 January 2023 and was partly oral and partly implied. Accordingly, the purported assignment is not in writing and no written notice has been given to the debtor in contravention of s.134 of the Property Law Act 1958. As such, it is not a legal assignment. To be effective as an equitable assignment, it must be made for good consideration. The authors of Meagher, Gummow & Lehane's Equity Doctrines and Remedies, put it precisely, > > > > "A purported assignment for value, of legal property which fails at law, or a contract, for value, to assign legal property, effects an equitable assignment when the consideration is paid or executed; this is a case which equity regards as done which ought to be done". > > 3. The consideration is alleged in paragraph 6(g) of the PAD to have been management fees in respect of rent payable but not paid. However, no evidence is provided as to fees owing. There is no paid consideration passing from the purported assignor to the assignee. No invoice for fees is produced or referred to. The management agreement has not been produced to the Court. The purported assignment agreement is contradicted by the defendant's own evidence. In Back's second affidavit (sworn 24 July 2025), he exhibits an email he sent to the tenant on 2 March 2023 (6 weeks after the purported agreement) stating, inter alia, "I have been meaning to get another reconciliation for you for rent and outgoings owed, I have also been expecting an email from you outlining your plan to repay the amount outstanding ... Given the very large amount owed, today I had a discussion with Mrs Walters [sic] solicitors, they are demanding answers and would wish to take recovery action against you". > > [Footnotes omitted]

1. The defendant's alternative defence to this claim of estoppel by representation also has no real prospects of success.
2. The defendant pleads, at PAD [6A]:

Further and in the alternative, on or about 19 January 2023 RCW represented to Beleura, and Beleura assumed, that Beleura could retain any of the Tenant's debt which it was able to recover from the Tenant (representation).

3. At PAD [6B], the defendant pleads that RCW induced Beleura to rely on the representation. The particulars say the inducement is to be inferred from 'the actions and conduct referred to in paragraph (h) of the particulars subjoined to paragraph 6'. Paragraph (h) of those particulars relevantly includes:

(i) Beleura did not seek and has not sought to recover the management fees from RCW;

(ii) From 19 January 2023 until the demand referred to in paragraph 7 of the amended statement of claim [23 April 2024] RCW did not

1. take steps to recover the Tenant's debt, or
2. enquire of Back about payment of the Tenant's debt, and

(iii) RCW did not comment proceedings against the Tenant to recover the Tenant's debt.

1. The defendant pleads (at PAD [6C]) that relying on the representation, Beleura took steps to recover the Tenant's debt, did not remit it to RCW, has not tried to recover the management fees from RCW and has not tried to recover from RCW commission of $20,000 which RCW owed it in respect of the purchase of the Langwarrin property. He pleads RCW knew or intended Beleura to act on the representation (at PAD [6D]) and that Beleura's conduct will cause it detriment if the representation and its assumption are not fulfilled (at PAD, second [6D]).
2. I agree with the plaintiffs' submissions as this defence:

1. The PAD then contains an alternative claim in estoppel by representation (paragraphs 6A-6D). Detriment "is an indispensable element of successful reliance upon an estoppel". In paragraphs 6C(a)-(d) of the PAD, it is alleged that 4 actions constituted reliance (and therefore detriment). However, none of these 4 actions could constitute reliance (or detriment).

(a) First, in (a), it is alleged that Beleura took steps to recover the debt. However, this does not constitute a change in position. It would have been done if no representation had been made, regardless. > > (b) The second element in (b) cannot constitute reliance. It is simply a refusal to hand over money by a debtor to a creditor; > > (c) The third element in (c) is the same as (a) as the fees (if any) would have been sought to be recovered if no representation had been made and the tenant's debt paid; and > > (d) The fourth element in (d) is nonsense. The "commission" in respect of the Langwarrin property was not $20,000, but $72,000 and was one to which the defendant was disentitled by virtue of s.49A of the Estate Agents Act 1980. > > [footnotes omitted]

1. The defendant final defence to this claim is that Beleura, not the defendant, is the proper defendant to this claim.
2. There are no real prosects of success to this defence. As the plaintiff submits:

6. ... Paragraph 4 of the amended statement of claim alleges a management agreement with Back. This is admitted in paragraph 4 of the (original) defence that was struck out and again, in paragraph 4 of the PAD. Further, the invoices to the tenant exhibited to Back's second affidavit (pages 21 and 22 of Exhibit SJB-11) are in the name of "Stephen Back t/as Beleura Commercial".

1. In the amended statement of claim, the second plaintiff claims that pursuant to two oral agreements, Mrs Walters invested first $300,000, and then $200,000, with the defendant. The investments were on terms including the payment of interest at 6% monthly, and repayment of the principal amount on two business days' notice. Some of the agreed monthly interest was paid, between 2 July 2020 and 22 December 2020. Later, Mrs Walters demanded repayment of the principal amounts. The principal amounts and the balance of the agreed interest remain due.
2. The first agreement was said to be in or about May 2020, for the investment of $300,000; the second agreement in or about June 2020, for the investment of $200,000.
3. At the hearing before me, the defendant contended by way of defence to these claims (amongst other things) that the agreements were between Mrs Walters and Beleura (not with him personally).
4. This contrasted sharply with the defendant's initial Defence (dated 18 October 2024), which did not raise this defence. In the Defence, the defendant admitted that the agreements were made with him, the money was invested with him, and said that he commenced paying Mrs Walters interest on a monthly basis. His substantive defence at that time, was that his agreements with her were later varied (Defence [27] and [33]). He pleaded that, on 30 August 2023, after he told Mrs Walters her investments had not performed as expected, primarily due to adverse conditions and the economic impact of COVID-19, she said that she was 'unconcerned about investments, indicating that she expected to pass away soon'. He pleaded that 'She expressly told the Defendant he did not need to repay the funds'. (Defence [61]).
5. Adding to this, in the further and better particulars of defence (finally provided to the plaintiffs on 31 January 2025) he provided particulars of Defence [27], of the claimed variation agreement, referring to the offer 'made by the defendant', and acceptance given by Mrs Walters.
6. In his affidavit sworn 11 June 2025, he continued to refer to his agreement with Ms Walters, and referred to payments he had made of interest.
7. In his 11 June affidavit he said, relevantly:

25. In addition to her real estate portfolio, in or around May 2020 Elaine and I discussed a further investment she could make with me directly, whereby she would transfer money to me to invest on her behalf. The money was transferred as follows: > > a) in or around May 2020, a transfer of $300,000; an (sic) > > b) in or around June 2020, a transfer of $200,000. > > 26. The terms of the investment agreement between myself and Elaine were that I would pay interest of 6% per annum to her monthly, and the principal sum of the investment would be repayable on demand within two days. On that basis the investment was described as an 'at call deposit'. Now produced and shown to me and marked "SJB-3" is a copy of the email sent to Elaine's accountant. > > 27. I paid interest as agreed from July to December 2020. > > ... > > 29. On 1 July 2021, I sent a financial statement to Elaine's accountant ... showing that the interest on Elaine's investment had been capitalised rather than paid out. ... > > ... > > 34. On 19 January 2023 I met with Elaine at her home ... I explained my financial position in detail, including that I would experience difficulties in repaying the investment in the time period previously agreed. Elaine told me she understood the circumstances and would not press for repayment at that time. I told her I had purchased a rent roll in Mornington by Beleura Solutions. ... > > 35. On 14 February 2023, I emailed Mr Pederdy referencing this meeting and our discussions around repayment of Elaine's investment. Now produced and shown to me and marked "SJD-6" is a copy of the email sent to Elaine's accountant. > > ... > > 38. On 23 May 2023 I met with Elaine at her home for an hour. She was in her lounge room using a respirator or oxygen mask. She told me she no longer cared about the investment and did not want to push for repayment. We spoke about the matter for around 20 minutes. I recall hugging her after she said this. .... > > 39. On 30 August 2023 I had a further meeting with Elaine at her home. ... She said words to the effect that I did not need to repay any of the investment. .... We discussed her investments with me and said she was "not going to call in the investment". ... > > 40. On 21 September 2023, I emailed Elaine's advisor regarding repayment of her investment. While that email may suggest a firm intention to repay, it was subject to prior discussions with Elaine where she had said that I did not need to repay the investment. I acknowledge the potential tension with my earlier representations but reiterate that Elaine gave me express and repeated assurances in person that she did not intend to pursue repayment of the investment. Now produced and shown to me and marked "SJD-9" is a copy of the email sent to Elaine's accountant.

8. However, in his second affidavit on the merits, sworn 24 July 2025, the defendant sought to recast the agreements he had described in his 11 June 2025 affidavit.
9. He said, in the 24 July 2025 affidavit:

25. At paragraph 25 of my first affidavit I refer to the investments that Elaine made in May and June 2020.

10. By way of background, in around April 2020 I had been in discussions with Brad Jackson, who was a broker acting for Stockdale & Leggo Dromana in relation to the sale of its business. These discussions later turned into discussions about buying just the business's rent roll. On around 18 May 2020, Beleura entered into formal heads of agreement with Stockdale & Leggo Dromana for Beleura to purchase the rent roll.

27. At the time I was negotiating with Mr Jackson, I was making arrangements to finance Belura's purchase. This included approaching Elaine as a potential investor.

11. On 15 May 2020 I sent an email to Elaine relating to her potentially investing in Belura's business. My email refers to the recent purchase of a "rental portfolio" (ie, a rent roll) from Stockdale & Leggo Dromana and contains an offer for her to invest in the business. The email also states that the funds "will be used to reduce the loan that I get from the bank for the purchase". I signed off the email with 'Beleura Property Solutions', which is a trading name of Beleura. A copy of the email is at pages 17 to 19 of Exhibit SJB-11.

29. On 18 May 2020 Elaine sent me an email saying that she accepted this offer and would invest $300,000. After I received her payment from her, Beleura sent her a receipt which described the payment "investment in Beleura Solutions". The receipt was issued by 'Beleura Investment Solutions', which is a trading name of Beleura. A copy of Elaine's email and the receipt is at pages 17 to 19 of Exhibit SJB-11. > > 30. The explanation for the purpose of the investment which I gave to Elaine in my email of 15 May 2020, is the explanation I gave to Elaine's accountant Stuart Peberdy, in an email of 12 June 2020 which I referred to in paragraph 26 of my first affidavit. A copy of that email is Exhibit SJB-3 to my first affidavit. > > 31. My 12 June 2020 email to Mr Peberdy attached two statements which were dated 20 May 2020 and 1 June 2020. I unintentionally omitted to include them as part of Exhibit SJB-3. Those two statements are at pages 20 to 21 of Exhibit SJB-11. They were both issued by 'Beleura Investment Solutions'. > > 32. In or around June 2020 I had an oral conversation with Elaine, where she offered to invest a further $200,000 in Beleura. I accepted this proposal.

12. Elaine paid her total investment of $500,000 by two cheques, one for $300,000 and one for $200,000. For reasons I do not know she made both cheques out to me personally. In the case of the first cheque for $300,000, I deposited it into my personal account and then transferred the funds to Beleura's business account. A redacted copy of Beleura's monthly bank statement for May 2020 showing Beleura receiving the $300,000 is at pages 22 to 23 of Exhibit SJB-11.
13. For the second cheque for $200,000, l deposited it into my personal account. I did not directly on-transfer the funds to Beleura's account but used them as part of the payment for Beleura to buy the Stockdale & Leggo Dromana rent roll. As Elaine had paid the $200,000 as an investment in Beleura and its business, that is what I used the $200,000 for.

35. The purchase of the Stockdale & Leggo Dromana rent roll was completed on 14 August 2020. The rent roll was purchased by and continues to be owned by Beleura. > > 36. At paragraph 27 of my first affidavit I refer to payments of interest from July to December 2020. Each of those payments were made by Beleura. Redacted copies of Beleura's monthly bank statements from July 2020 to December 2020 showing the interest payments are at pages 24 to 31 of Exhibit SJB-11. > > 37. The business was owned and run by Beleura. I requested Elaine's investment on its behalf. The purchase of the Stockdale & Leggo rent roll - the main reason that I approached Elaine with the offer to invest - was purchased by Beleura. The funds advanced by Elaine were used for the benefit of Beleura and all of the statements issued to Elaine were issued by Beleura.

14. In the PAD, the defendant pleads the agreements about the investments were entered between Mrs Walters and Beleura (not him), and that the money was advanced for the purposes of Beleura's business. He pleads that around January 2021, Beleura and Mrs Walters agreed to amend the agreements so that interest was then to be capitalised rather than being repaid monthly, and that Beleura issued a statement to her showing that on 1 July 2021: PAD [25A], [25B]. He pleads other reasons as to why Beleura should not have to repay the money.
15. The documents in evidence go some way to supporting this defence that Mrs Walters contracted with Beleura.
16. The 15 May 2020 email sent by the defendant to Mrs Walters relating to the proposed 'investment opportunity' includes the following:

Purpose of the investment: > > We have recently acquired the Stockdale and Leggo Dromana Rosebud rental portfolio. The funds you invest will be used to reduce the loan that I get from the bank for the purchase. > > Terms of investment:

... I will pay you interest on the amount invested of 6%pa. This will be paid in monthly instalments to your nominated account.

I will send you a statement each month of the amount that remains invested and the interest that has been paid to you.

....

Regards

Stephen Back

...

Beleura Property Solutions

1. On 18 May 2020 a receipt was sent from 'Beleura Investment Solutions', to Mrs Walters, for $300,000 with a description 'Investment in Beleura Solutions'. The $300,000 was paid into Beleura's bank account on 20 May 2020. Subsequent interest statements were sent from 'Beleura Investment Solutions', and the money paid from Beleura's bank account.
2. On 12 June 2020, Mrs Walter's accountant wrote saying he had just spoken with Mrs Walters 'and she let me know she's invested $300,000 with you and currently receiving a return of 6%.' He asked for details of the investment.
3. The defendant sent an email by reply, which attached statements for 'the investment'. It included:

... > > Purpose of investment: Directly the funds are used to reduce our loan facilities (bills) with NAB bank. More broadly the funds are used in the running and operation of the business. > > ... we offered Elaine an opportunity to invest in our business for a greater return than she was getting at the bank. ...

4. The sign off was 'Stephen Back, [phone number], Beleura Property Solutions.
5. On 4 August 2020, the defendant sent an email to Mrs Walters, which included the following:

On a good note the residential portfolio remains strong for the time being ... Additionally, your investment returns in Beleura Solutions shall continue unaffected.

34. On 19 January 2023 I met with Elaine at her home ... I explained my financial position in detail, including that I would experience difficulties in repaying the investment in the time period previously agreed. Elaine told me she understood the circumstances and would not press for repayments at that time. I told her I had purchased a rent roll in Mornington by Beleura Solutions. ... > > ....

On 14 February 2023, the accountant wrote to the defendant saying:

Regarding my last email and Elaine's investment with you, are you please able to confirm for me a date when it will be repaid in full. ...

The defendant responded that day, to the accountant and Mrs Walters:

In my discussion with Elaine almost 3 weeks ago now, I explained that I did not have the funds available to transfer and I would refinance to enable this to occur. ... > > ... > > I have a meeting with my business banker at NAB this week to discuss the refinance. ...

On 18 May 2023, Mrs Walters sent the defendant an SMS, referring to her accountant as Stuart, and saying:

... I have had Stuart here this morning and Kelly was here yesterday. Both are of the opinion that I should find a new agent and reinvest my money elsewhere. > > It is very disappointing, but Stuart ... insists that the investment I have with you should be realised. I am sure you can sort all this out, and I'm certainly prepared to wait another week or so I feel very unhappy about such a situation but I'm sure you will resolve it

As indicated above, the defendant has sworn that:

38. On 23 May 2023 I met with Elaine at her home for around an hour. She was in her lounge room using a respirator or oxygen mask. She told me she no longer cared about the investment and did not want to push for repayment. We spoke about the matter for around 20 minutes. I recall hugging her after she said this. .... > > 39. On 30 August 2023, I had a further meeting with Elaine at her home. ... She said words to the effect that I did not need to repay any of the investment. .... We discussed her investments with me and she said she was "not going to call in the investment". ...

On 21 September 2023, Mrs Walters' then solicitor (at Roberts Beckwith), wrote to the defendant:

Just following up the loan agreement with Elaine we sent you back in November 2022 (attached again for your convenience). You last indicated you were to review and get back to us ...

The loan agreement is not in evidence. 13. The defendant replied by email to the solicitor that day, copying in the accountant:

With interest rates rising I my [sic] borrowing capacity has been reduced, I have discussed this with Elaine and she had told me that she was happy to leave things as they were, specifically not following up the repayment. > > Given Elaine's health I am still going ahead with refinancing to enable the repayment of the loan when called in, which I expect at this point to be upon her passing. > > Regarding the shortfall of funds for RCW, and offsetting this against debt, I am agreeable to pay $5,000 to RCW and reduce the $500,000 loan to $495,000 (sic) > > Please let me know if this is agreed.

14. The defendant signed the above email as 'Stephen Back, Director | OIEC, Mornington Peninsula Property Group'.
15. In his affidavit, the defendant says the following about this email:

40. On 21 September 2023, I emailed Elaine's advisor regarding repayment of her investment. While that email may suggest a firm intention to repay, it was subject to prior discussions with Elaine where she had said I did not need to repay the investment. I acknowledge the potential tension with my earlier representations but reiterate that Elaine gave me express and repeated assurances in person that she did not intend to pursue repayment of the investment. ....

16. On 14 December 2023 Mrs Walters sent an SMS message to the defendant which included the following:

It grieves me to have to say this to you, but apparently you and Magen have not been honest in your dealings with me. I gave you my trust ... It is not too late to make everything right if you firstly repay my investment with you and pay all the interest that you owe me as [sic] the past few years ...

17. The defendant responded to Mrs Walters that day, also by SMS:

I have not been dishonest, we discussed this openly and honestly in May when I went over with you our financial situation. In our last conversation in September you said you didn't want to deal with these things anymore. ....

18. Significantly, that same day - 14 December 2023 - Mrs Walters' solicitor wrote a letter of demand to Beleura. It was addressed to 'Mr S. Back, Beleura Solutions Pty Ltd', and was headed:

Letter of Demand: Debt owed by Beleura Solutions Pty Ltd trading as Beleura Investment Solutions to Elaine Walters

19. Although Mrs Walter's cheques were made payable to the defendant personally, the initial statement showing receipt of funds was sent from Beleura, as were subsequent interest payments. The first demand sent on behalf of Mrs Walters was sent to Beleura.
20. The plaintiffs submit that the defendant should not be permitted to resile from his admissions in the (initial) Defence that the agreements were with him. However, given that the Defence has been struck out, the question of resiling from the earlier pleaded position probably does not arise. In any event, as the contemporaneous evidence provides some support for the new defence pleaded in the PAD (whilst also going against it), I would allow it if necessary.
21. I am satisfied that there are real prospects of success in the defence now raised, that the loans were made to Beleura rather than the defendant. Ultimately, of course, the second plaintiff may very well succeed in showing that the agreements were with the defendant directly, and that he chose to put the money into Beleura's bank account and use it for Beleura's purposes, but remained personally liable (as the second plaintiff submits). But this is a matter which must be tested at trial.

1. The plaintiffs submit:
   1. Further, if the Court is persuaded that there is a defence to any part of the claim (which is denied) then such a defence is extremely thin and any leave should be subject to a condition that the amount of the claim is paid into court (see Panas v Andrea (Supreme Court of South Australia, Mitchell J, 20 December 1982)).
2. I am not satisfied that it is appropriate to order payment of the amount of the claim into court. The facts of the Panas case are very different to this one.

1. The defendant complains that the plaintiffs applied for judgment without giving him notice, in circumstances where he argues there had been substantial compliance with the 8 January orders, and the plaintiffs had continued to engage with the defendant in the proceeding for some time before applying for judgment. He complains the plaintiffs 'snapped on' judgment.
2. However, the effect of the self-executing order was that the defence was automatically struck out at 4.01 pm on 14 January 2025, following the defendant's non-compliance: Ridge Lane at [17].
3. The 8 January orders stated that the plaintiffs were then 'at liberty' to enter judgment, and specified that a Form 21A Notice was not required to be filed.
4. A Form 21A Notice arises under Rule 21.02. That Rule provides:

(1) Where any defendant, being required to serve a defence, does not do so within the time limited, the plaintiff may serve on the defendant a notice in Form 21A informing the defendant that the plaintiff intends to enter or apply for judgment against the defendant. > > (1A) If the defendant does not serve a defence within seven days of service of the notice under paragraph (1), the plaintiff may enter or apply for judgment against the defendant in accordance with this Order. > > (2) Judgment shall not be entered or given for the plaintiff unless the plaintiff files an affidavit proving -

(a) the defendant's failure to serve a defence within the time limited;

(b) the service on the defendant of the notice under paragraph (1); and

(c) the defendant's failure to serve a defence within seven days of service of that notice.

(3) Paragraphs (1), (1A) and (2) shall apply, with any necessary modification, where -

(a) the defendant has served a defence; and

(b) by or under an order of the Court the defence is struck out.

1. So, service of a Form 21A Notice gives a defendant notice, in circumstances where they may have overlooked a required date for serving a defence, that if they don't serve a defence within seven days, the plaintiff may enter or apply for judgment.
2. Here, the defendant was well aware of (and consented to) the 8 January orders, which provided a cut off time for the required compliance with orders, struck out the defence if there was non-compliance, said the plaintiffs were at liberty to enter judgment once the defence was struck out, and made clear no further notice was required.
3. I consider that in the circumstances, the plaintiffs were entitled to apply for judgment, despite first having some limited further engagement with the defendant about the proceeding, in the weeks after the defence was automatically struck out. This was particularly so when that engagement was directed to seeing if there was merit in defences raised and in giving the defendant more time to produce documents, and give more particulars of the Defence, in circumstances where what had initially been produced was inadequate.
4. Judgment was not 'snapped on'.

1. I propose to make orders to the following effect:

(a) The orders of Judicial Registrar Muller dated 11 April 2025 are set aside.

(b) The defendant has leave to rely on the affidavits which were not before the Judicial Registrar.

(c) The default judgment entered on 24 February 2025 is varied, so that judgment is not entered for the second plaintiff on the investments claim.

(d) Listing the trial for at the first available date, 16 November 2026, on a 3 day estimate.

1. I direct the parties to consider the form of orders to be made, including as to the variation of the default judgment, interest and costs, and the future conduct of the proceeding.
2. So far as costs are concerned, my preliminary view is as follows. The defendant should pay the plaintiffs' costs of the application on the standard basis to the date of the hearing before the judicial registrar, and on an indemnity basis thereafter, to be taxed in default of agreement.
3. The reason my preliminary view includes indemnity costs after the date of the hearing before the judicial registrar, is that here the defendant not only seeks the indulgence of the court in relying on affidavits on the merits which were only filed after that hearing, but has fundamentally changed his defence to the investments claim (and has only been successful in setting aside the judgment in relation to that claim as a result of the newly raised defence that the investment agreements were with Beleura, not with him personally).
4. Of course, the parties may seek alternative orders; the above is a preliminary view only.
5. I have reserved the next available trial date, on a 3 day estimate, given the limited nature of the remaining claim and defences.
6. The parties are directed to confer with a view to agreeing on further orders if possible. If the parties cannot agree, then they must file:

(a) submissions as to the orders they seek, and any affidavit on which they rely, by 4 pm on 10 March 2026; and

(b) any reply material and submissions by 4 pm 17 March 2026.

1. The initial submissions are to be limited to five A4 pages, and the reply submissions are to be limited to three A4 pages. A Pdf bundle of authorities relied on must be provided with the submissions.
2. A further hearing on these issues will be listed if necessary.

I certify that these 35 pages are a true copy of the reasons for ruling of Her Honour Judge Marks, delivered on 24 February 2026.