Australia, Aug. 26 -- New South Wales Land and Environment Court issued text of the following judgement on July 25:
1. Rhodium Trading Australia Pty Ltd, to which receivers and managers have been appointed and which is in liquidation, claims that the defendant, Leading Edge Commercial FZE, is liable to pay for goods to the value of USD7,964,840, together with contractual interest and costs.
2. Leading Edge is an entity based in the United Arab Emirates. Under three sales contracts, Rhodium Trading supplied Leading Edge with large quantities of Brazilian cane sugar, Argentine soya bean, and Ukrainian corn. Rhodium Trading alleges that it has received no payment for those goods.
3. In March 2025, Richmond J made orders for substituted service of the originating documents on Leading Edge. I am satisfied from the evidence before me that Leading Edge has been served in accordance with those orders.
4. Rhodium Trading now seeks, as its primary relief, default judgment against Leading Edge on its Summons and Commercial List Statement, pursuant to r 16.6(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), by applying Pt 16 thereof by analogy through orders made under s 61(3)(g) of the Civil Procedure Act 2005 (NSW). It relies upon the judgment of Brereton J in Toyota Finance Australia Ltd v Suntsova [2025] NSWSC 94 at [7], where such an approach was taken in circumstances where, instead of a Statement of Claim having been served and forming the basis of an order under Pt 16, a Summons and Commercial List Statement had been served: see also The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd [2021] NSWSC 1175 at [12] (Hammerschlag J); Cashflow Finance Australia Pty Ltd v Bennett [2024] NSWSC 632 at [46] (McGrath J).
5. Rule 16.6(1) empowers, but does not require, the Court to order judgment in default in cases within the rule: Wily v King [2010] NSWSC 352 at [17] (Barrett J). Relevant to the exercise of the Court's discretion is the existence of an affidavit in support of the plaintiff's application that complies with rule 16.6(2) and sets out the necessary information.
6. Rhodium Trading's motion was supported by affidavits from Mr Joseph Hansell, one of the joint and several receivers and managers appointed to its property, and Lucinda Blue, one of its solicitors. The supporting affidavits complied with r 16.6(2)(a)-(d) and (f) insofar as they addressed the existence and amount of the debt and interest claimed, and service of the originating process.
7. However, despite Rhodium Trading seeking its costs, the supporting affidavits did not comply with r 16.6(2)(e) UCPR in that they did not set out the amount claimed for professional costs, filing fees, and costs of serving the originating process. I raised that noncompliance with counsel for Rhodium Trading, Ms Jaffray, at the hearing of the motion on 18 July 2025, and adjourned the motion to allow the filing of further evidence to support the claim for costs.
8. At the adjourned hearing on 25 July 2025, Rhodium Trading sought a gross sum costs order pursuant to s 98 Civil Procedure Act 2005 (NSW) in the sum of $95,235.28. It relied on a further affidavit from Ms Blue, who deposed that Rhodium's costs are $109,830.70, comprising solicitors' fees of $90,200.92 and disbursements of $19,629.78.
9. Despite having time to put on additional submissions and evidence, the application remains deficient. It does not address r 16.6(2)(e)(i), which provides that the amount claimed on account of professional costs is not to exceed the amount fixed by regulation. By dint of reg 24(1) of the Legal Profession Uniform Law Application Regulation 2015 (NSW), the costs payable in respect of the enforcement of a liquidated sum are fixed at the amounts specified in Sch 1 to that Regulation. On its face, that provision would entitle Rhodium Trading to professional costs of some $4,060.00 for preparing the originating process, substituted service, service outside Australia in a country where English is not the official language, and applying for default judgment.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1983f82e3473cc50bde350ca)
Disclaimer: Curated by HT Syndication.
