Westlawn Finance Limited v A.C.N. 616 658 505 Pty Ltd (No 2)

File Number(s): 2024/00232337

JUDGMENT – EX TEMPORE

1. On 5 June 2025, I handed down my reasons for decision as to why, in my view, there should be summary judgment for the plaintiff against each of the defendants under Part 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) and that the Defence of the defendants should be struck out under Part 14.28 of the Uniform Civil Procedure Rules: see Westlawn Finance Limited v A.C.N. 616 658 505 Pty Ltd [2025] NSWDC 209. I stood the matter over to today at 11am so that affidavit evidence could be filed on behalf of the plaintiff in relation to the amount which is sought by it.

2. In the Statement of Claim filed on 24 June 2024, Mr Kumar, who describes himself as the Collections and Recoveries Manager, has sworn an affidavit verifying the allegations of fact in the Statement of Claim dated 24 June 2024 and states in paragraph 1 that he has authority to make the affidavit on the plaintiff’s behalf. In the absence of any indication to the contrary, that would appear to be verified evidence that he has the authority to make the affidavit on the plaintiff’s behalf.

3. The affidavit dated 6 June 2025 of Ms Tarrant also indicates in paragraph 1 that she is “duly authorised to make [the] affidavit on the plaintiff’s behalf”. That, on its face, would appear to give her authority.

4. Mr Strangio, on behalf of the defendants, has submitted that there is no detail in relation to the amount sought as the capital amount and in relation to interest by the plaintiff.

5. The Statement of Claim filed on 24 June 2024 expressly pleaded that the amount of the claim is $188,434.20. That sum is expressly stated in paragraphs 7 and 13 as the amount in the termination notices said to have been forwarded to the defendants. By virtue of the summary judgment and the strikeout, which I ordered on 5 June 2025, the allegations of fact in the Statement of Claim are taken to be established. Further, the amount claimed as set out in the Statement of Claim was set out in the termination documents which were served with relevant calculations included: see Exhibit C pages 208-215.

6. Additionally, Ms Tarrant, in her affidavit, refers to the sum of $188,434.20 in paragraph 6 of her affidavit, relying on the Statement of Claim figure.

7. In my view, there is sufficient evidence before me to establish that quantum.

8. In relation to the interest claimed of $15,795.75, there is an Annexure A to Ms Tarrant’s affidavit indicating how that amount claimed is determined, relying on s 100 of the Civil Procedure Act 2005 (NSW): affidavit paragraph 8. The calculations indicated in annexure A appear to be correct. I am therefore satisfied in relation to the interest component claimed.

9. In relation to the costs component, paragraph 11 refers to it being an “estimate of time”. The Court is not disposed to make a lump sum costs order on the basis of the estimate provided and, in my view, the appropriate order in the absence of any further more precise evidence is for the costs to be assessed unless agreed.

10. Mr Strangio, in his detailed oral submissions, stated that the history of offers and counteroffers between the parties indicates that the amount claimed by the plaintiff should not be available to be sought. On the basis of what he has indicated, and as set out in my rulings in relation to Ms Tarrant’s affidavit, the requirements of the defendants appeared to amount to a counteroffer and, accordingly, there was no binding settlement reach between the parties as asserted. Therefore, on the face of it, this does not prevent the plaintiff proceeding with the claim as it did on 5 June 2025.

11. In relation to the assertion that there is no detail of the amount claimed, that is set out in both the Statement of Claim, the pleading of facts which must be accepted as the Defence has been struck out, and also in the material relied upon giving rise to the judgment of 5 June 2025 which I have referred to above.

12. Mr Strangio also raises s 58 (3) of the Bankruptcy Act 1966 (Cth). He submits that the proceedings cannot continue against him and that the proceedings against him are stayed. That is the position under s 58 (3) of the Bankruptcy Act where the debt claimed is a provable debt. A party cannot commence any legal proceedings or take any fresh step in such a proceeding against a bankrupt person in relation to proceedings for a “provable debt”.

13. What is a provable debt? The definition of debts provable in bankruptcy is set out in s 82 of the Bankruptcy Act 1966. That makes clear in s 82(1) that debts provable in bankruptcy are all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy. Only those debts are provable in the bankruptcy.

14. On the evidence before me on 5 June 2025, Mr Strangio was made a bankrupt in 2008 and is not discharged. The obligations in question in the present case were not incurred by him before the date of the bankruptcy and did not relate to such debts provable after the date of the bankruptcy. They related to obligations incurred after the date of the bankruptcy. They are therefore debts not provable in his bankruptcy within s 82 of the Bankruptcy Act. Accordingly, the limitation on the continuation of the proceedings in s 58 (3) does not apply to Mr Strangio.

15. In my view, the quantum has been established by the plaintiff with the appropriate interest. As stated, I do not allow the costs claimed as a lump sum. When I add the amount of $188,434.20 plus the interest component of $15,795.75, I get the amount of $204,229.94.

16. Accordingly, the orders I make in relation to the application made by the plaintiff today are:

17. Summary judgment for the plaintiff against each of the defendants in the sum of $204,229.94, constituting principal and interest up to 6 June 2025;

18. The plaintiff’s application for a lump-sum cost order is dismissed.

19. Mr Strangio has sought to make a stay application in the event that I do not enter judgment as he has requested against the plaintiff, which I will deal with separately.

[His Honour then dealt with a stay application.]

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