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[2025] NSWSC 1237
General information, not legal advice.
Supreme Court of NSW
2025-10-21
Peden J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Sloan Global Advisors Pty Ltd v Fenix Ltd [2025] NSWSC 1237
Hearing dates: 19 September 2025, further submissions 3 October 2025
Date of orders: 21 October 2025
Decision date: 21 October 2025
Jurisdiction: Equity - Commercial List
Before: Peden J
Decision: See [26]
Catchwords: CIVIL PROCEDURE – default judgment – mixed claim for liquidated and unliquidated damages – costs limited for default judgment – judgment for the plaintiff for unliquidated damages to be assessed PRIVATE INTERNATIONAL LAW – service – leave to proceed under r 11.8AA of UCPR – submitted to the jurisdiction – service in New Zealand and United States – not a clearly inappropriate forum – leave granted
Legislation Cited: Civil Procedure Act 2005 (NSW) s 64
Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters art 10
Legal Profession Uniform Law Application Regulation 2025 (NSW) s 20, sch 1 pt 1
Trans-Tasman Proceedings Act 2010 (Cth) s 9
Trans-Tasman Proceedings Regulation 2012 (Cth) r 5
Uniform Civil Procedure Rules 2005 (NSW) rr 10.22, 11.4, 11.8AA, 16.1, 16.2, 16.3, 16.6, 16.7, 16.8, sch 6
Cases Cited: AGC Capital Securities Pty Ltd v JaiJaifu Modern Agriculture (HK) Limited [2019] NSWSC 62
Arnold v Forsythe [2012] NSWCA 18
Sinopec International (Australia) Pty Ltd v Su [2019] NSWSC 269
Stamford Capital Funds Management Pty Ltd v Tsihlis [2025] NSWSC 974
Thompson v Perpetual Trustees Victoria Limited (No 2) [2023] NSWSC 459
Wanis v Lifestyle Residences Hobsons Bay Pty Ltd (No 2) [2024] NSWSC 1296
Category: Principal judgment
Parties: Sloan Global Advisors Pty Ltd (Plaintiff)
Fenix Ltd NZ (First Defendant)
Fenix Energy USA, LLC (Second Defendant)
Moshe Baum (Third Defendant)
Paul Gilbert Saffron (Fourth Defendant)
Representation: Counsel:
C L W Street (Plaintiff)
Solicitors:
HWL Ebsworth Lawyers (Plaintiff)
File Number(s): 2025/00186424
Publication restriction: Nil
Sloan Global Advisors Pty Ltd seeks default judgment on its claim for breach of contract against Fenix Ltd NZ, Fenix Energy USA LLC, and Mr Moshe Baum, the chairman and CEO of Fenix Energy USA. Although Sloan Global sued a fourth defendant, Mr Paul Saffron, it does not seek any relief against him. Each of the relevant defendants is outside Australia and none has appeared or filed a Commercial List Response. Sloan Global also seeks leave to proceed under r 11.8AA(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
Sloan Global’s substantive claim broadly concerns a subscription agreement dated 9 January 2023, under which Fenix Ltd NZ (a subsidiary of Fenix Energy USA) agreed to buy 18,200 shares in Sloan Global for AUD $2,000,000 (Subscription Agreement). Those shares were intended to reflect 7% of Sloan Global’s post-expansion shareholding. Completion was to occur on execution of the Subscription Agreement, but the consideration was not paid.
On about 8 July 2024, Fenix Ltd NZ and Sloan Global, together with Fenix Energy USA, agreed to amend the Subscription Agreement to: (a) increase the number of subscription shares to 26,887 or 10% of the post-expansion shareholding; (b) amend the consideration payable to USD $2,000,000; and (c) extend the completion date to 15 July 2024 (1st Amendment to the Subscription Agreement).
However, again, completion did not occur. After extended correspondence between Sloan Global and Fenix Energy USA (including demands for payment), on 8 August 2025, Sloan Global issued a notice to complete to Fenix Ltd NZ and Fenix Energy USA, requiring completion under the Subscription Agreement within 10 business days. Shortly after on 22 August 2025, Sloan Global issued a notice of termination.
Sloan Global claims damages for breach of the Subscription Agreement and seeks default judgment against Fenix Ltd NZ and Fenix Energy USA in that regard. With respect to interest on this claim, Sloan Global proposes to provide my Associate with calculations of interest within seven days of the sought orders on damages being made.
Sloan Global also brings a claim in relation to letters of undertaking (LOUs) issued by Fenix Energy USA on 10 January 2023 and 30 June 2023. In the first, Fenix Energy USA agreed to reimburse certain expenses incurred by Sloan Global in relation to establishing a segregated portfolio company in the Cayman Islands, capped at AUD $500,000. Sloan Global contends that in the second, Fenix Energy USA agreed to increase that amount by AUD $165,000. Sloan Global claims it has incurred expenses of USD $235,851.48, AUD $17,154, and £2,075, which fall within the terms of the LOUs.
Further, Sloan Global seeks costs against the defendants of AUD $66,306.30.
For the reasons that follow, I consider it appropriate to grant leave to proceed under r 11.8AA of the UCPR and to enter default judgment against the relevant defendants under rr 16.6, 16.7 and 16.8 of the UCPR.
For leave to proceed under r 11.8AA to be granted, the defendants must have been properly served, the claim in the originating process must fall within Sch 6 of the UCPR, it must be demonstrated that there is a real issue to be determined, and this Court must not be a clearly inappropriate forum: AGC Capital Securities Pty Ltd v JaiJaifu Modern Agriculture (HK) Limited [2019] NSWSC 62 (AGC Capital Securities) at [3] (Ward CJ in Eq, as the President then was).
First, I accept that service was validly effected upon the defendants for the following reasons.
Fenix Ltd NZ was putatively served with the Summons, Commercial List Statement, and Form 1 (in accordance with r 5 of the Trans-Tasman Proceedings Regulation 2012 (Cth)) in New Zealand by post. I accept both Sloan Global’s evidence that service by post occurred and its submissions that service by post is a permitted means of personal service in accordance with s 9 of the Trans-Tasman Proceedings Act 2010 (Cth) and r 10.22(b) of the UCPR.
Fenix Energy USA and Mr Baume were putatively served with the Summons, Commercial List Statement, and Form 161 in the United States by process server. As Australia and the United States are States parties to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention), the mode of service authorised by r 11.4 is applicable. I accept Sloan Global’s evidence that Article 10 of the Hague Service Convention was complied with through service by process server in the United States, and that such service occurred.
Secondly, I accept that the defendants have submitted to the jurisdiction of the Court in accordance with Sch 6 of the UCPR.
In accordance with Sch 6(b)(iv), Clause 6.4 of the Subscription Agreement states that the “laws of New South Wales govern this agreement”.
In accordance with Sch 6(k), Clause 6.5 states that “[e]ach party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales (including, for the avoidance of doubt, the Federal Court of Australia sitting in New South Wales) and any courts competent to hear appeals from those courts”.
In accordance with Sch 6(k), both of the above clauses are incorporated by art 6(b) of the 1st Amendment to the Subscription Agreement and affirmed in the LOUs, stating that “[e]ach party submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia in relation to any dispute connected with this LOU”.
Thirdly, I am satisfied that, on the material put before me, there is a real issue to be determined.
Fourthly, I am satisfied that this Court is not a clearly inappropriate forum. The existence of both choice of law and jurisdictional clauses illustrates that this Court is far from inappropriate: cf AGC Capital Securities at [10] (Ward CJ in Eq, as the President then was).
For those reasons, I grant leave to Sloan Global to proceed under r 11.8AA.
By notice of motion filed on 18 September 2025 with a supporting affidavit, Sloan Global sought default judgment for unliquidated damages under rr 16.3 and 16.7 of the UCPR in accordance with its Summons and Commercial List Statement. Notwithstanding that r 16.1 limits Pt 16 of the UCPR to “proceedings commenced by statement of claim”, I have explained elsewhere that the Court “undoubtedly nevertheless has power to enter judgment for [a] plaintiff” in light of a defendant’s failure to file a Commercial List Response: Stamford Capital Funds Management Pty Ltd v Tsihlis [2025] NSWSC 974 at [10] citing Sinopec International (Australia) Pty Ltd v Su [2019] NSWSC 269 at [38]-[40] (Hammerschlag J, as the CJ in Eq then was).
Further submissions were sought concerning the application of r 16.6 to the claim for reimbursement of expenses under the LOUs, as it appeared to be a liquidated claim.
On 3 October 2025, the solicitor for Sloan Global delivered a court book to my chambers containing an amended notice of motion (which was not filed), a further filed affidavit with exhibits, and filed supplementary written submissions directed to the application of rule 16.6. To the extent necessary, I grant leave for the notice of motion to be amended in accordance with s 64(1)(b) of the Civil Procedure Act 2005 (NSW) to reflect the changes made in the unfiled copy provided in the court book.
Following receipt of the supplementary material, it appeared that Sloan Global seeks default judgment in respect of two claims: (a) the claim under the Subscription Agreement as amended by the 1st Amendment for damages for breach of contract, which is an unliquidated claim under r 16.7; and (b) the claim under the LOUs, which is a liquidated claim under r 16.6. Rule 16.8 allows for “mixed claims” where the claim against the defendant in default falls under multiple claims in Pt 16 of the UCPR, with the relevant affidavits complying with the requirements in relation to each claim.
These claims will be considered in turn. For each, I accept Sloan Global’s submission that the failure by the defendants to file and serve any Commercial List Response places them in “default” within the scope of rr 16.2 and 16.3.
Leaving costs to one side, each of the elements contained in r 16.7(2) is satisfied for the claim for unliquidated damages. Based on the affidavit evidence of Mr Sloan I find:
First, the matter has not been settled with the defendants.
Secondly, the source of Mr Sloan’s knowledge is based on his role “as a director of the plaintiff” (paragraph 3 of Mr Sloan’s affidavit) which rises well above a mere intimation of familiarity with the matter: cf Arnold v Forsythe [2012] NSWCA 18 at [88] (Sackville AJA, McColl and Young JJA agreeing).
Thirdly, noting my reasons above dealing with service, I accept the originating process was served on the defendants.
In respect of costs, Mr Sloan states (at paragraph 7 of his affidavit) that the amounts claimed are:
AUD $3,699 in filing fees,
USD $5,221.06 in service fees, and
AUD $54,789 in legal fees.
Rule 16.7(2)(c)(i) of the UCPR states that the amount of professional costs sought must not exceed “the amount fixed by the regulations made for the purposes of section 59 of the Legal Profession Uniform Law Application Act 2014”. This amount derives from s 20 of the Legal Profession Uniform Law Application Regulation 2025 (NSW) and Sch 1 Pt 1 therein: see Wanis v Lifestyle Residences Hobsons Bay Pty Ltd (No 2) [2024] NSWSC 1296 at [22]-[29] (Davies J) regarding the operation of the prior regulation.
For legal fees and filing fees, the costs on applying for default judgment is AUD $1,596, which includes the costs of “taking instructions, preparing documents and filing statement of claim including drawing/typing/checking of originating process and cheque to pay account of process server”. For service fees, cl 24 states that the costs of service “outside Australia in a country where English is the official language” (applicable both to New Zealand and the United States) is AUD $164 (or $492 in total for three defendants served). Thus, I assess Sloan Global’s costs to be AUD $2,088.
I will not proceed to make a determination as to quantum of damages without an assessment hearing.
Each of the elements contained in r 16.6(2) is satisfied for the claim for liquidated damages under the LOUs.
First, the amount due to Sloan Global is based on the evidence totals: USD $235,851.48, AUD $17,154, and £2,075.
Secondly, the procedural history and inability to settle the matter has been canvassed, which illustrates that no reduction of the amount due to Sloan Global has taken place.
Thirdly, Mr Sloan’s source of his knowledge is “based on [his] role as a director of the plaintiff”. Furthermore, Mr Zhan’s source of knowledge derives from his role “in the employ of the solicitor on record for the plaintiff”.
Fourthly, at paragraph 6 of Mr Zhan’s affidavit, the amounts claimed for pre-judgment interest to 3 October 2025 are USD $33,269.62, AUD $3,771.43, and £269.76. I accept the justification of that interest contained in paragraphs 4, 7-10 of Mr Zhan’s affidavit, and paragraph 3 of the supplementary written submissions.
Finally, the assessment of costs and service is reflected in my reasons concerning r 16.7 above.
It is appropriate to make the following orders:
Pursuant to s 64(1)(b) of the Civil Procedure Act 2005 (NSW), grant leave for the notice of motion to be amended to reflect the changes made in the unfiled copy provided in the court book.
Pursuant to r 11.8AA of the UCPR, grant leave to the plaintiff to proceed against the first defendant, second defendant, and third defendant.
Pursuant to rr 16.7 and 16.8 of the UCPR, judgment against the first and second defendants with damages and interest to be assessed.
Pursuant to rr 16.6 and 16.8 of the UCPR, judgment against the second and third defendants in the amounts of USD $235,851.48, AUD $17,154, and £2,075, as well as pre-judgment interest in the amount of USD $33,269.62, AUD $3,771.43, and £269.76.
Costs awarded in the amount of $2,088.
The matter is listed for directions on 31 October 2025, including to set a date for the assessment of damages.
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Sloan Global Advisors Pty Ltd
Fenix Ltd [2025] NSWSC 1237