Portcam Pty Ltd trading as Edge Residential Real Estate v Mervyn Keane [2021] NSWDC 686
Mr Keane (the Applicant) filed a notice of motion on 10 August 2021 whereby he sought to have a default judgment set aside on the basis that it was obtained irregularly by Portcam Pty Ltd trading as Edge Residential Real Estate (the Respondents).
In this Application, his Honour Justice Wilson dealt with two issues:
SEPA deals with the interstate service of Court documents including originating process and the enforcement of Court orders outside the relevant State or Territory in which they are made. SEPA allows initiating processes to be served interstate if certain requirements are complied with.
The Applicant sought to set aside default judgment on the basis that the Respondent failed to serve the Applicant with a copy of the a ‘Form 1 Notice’ prescribed in Schedule 1 of SEPA with the statement of claim filed in the District Court of New South Wales and this invalidated the service of the claim.
A form 1 Notice found in SEPA advises readers:
Was service of the Statement of Claim effected?
The Court noted that this was a factual matter and this was subject to debate between the parties as to whether the Applicant had actually received the statement of claim by way of substituted service orders.
The substituted orders allowed for the Applicant to be served by way of ordinary post to his residential address and that the statement of claim, along with application for substituted services orders, be forwarded to the Respondent’s known email address. Service of the Statement of Claim was completed in accordance with the orders.
Was service compliant with the Law?
Both parties addressed the application of SEPA in the circumstances and the failure to attach a Form 1 Notice as prescribed by the Act.
However, section 8 of the Act states that SEPA will not effect a Court’s power to grant substituted service in circumstances where they have been unable to personally serve a defendant. It was then necessary for the Court to consider the orders made in the proceedings for substituted service on 3 June 2021.
His Honour noted that there was no reference to compliance with SEPA and therefore this dispensed with the need for the Respondent to comply with the requirements when serving the claim.
Through the course of submissions by the parties, the Applicant’s Counsel did make the concession that an email forwarded on 4 June 2021 enclosing the statement of claim was opened by the Applicant on 7 June 2021.
It was therefore apparent that the Statement of Claim was received via email pursuant to the orders made by the Registrar and the Applicant was therefore aware of the proceedings on foot. Once the Statement of Claim was received, the Applicant began making enquiries for legal representation and instructions were provided to solicitors by 2 July 2021. In consideration of the Applicant’s conduct after receiving the Statement of Claim, his Honour noted that it was “difficult to see what practical difference an attached Form 1 Notice would have made”. His Honour also noted that it appeared that the delays between services and the default judgment entered were based on the Applicant’s own conduct.
Ultimately his Honour found that even if the Respondent had attached a Form 1 Notice to the Statement of Claim served by way of email, the practical impact upon the facts of this case “would be minimal to non-existent”.
This judgment is an important reminder regarding the merits of arguments brought before the Court in setting aside default judgment and that minor procedural irregularities will not automatically invalidate a default judgment.
If a judgment has been entered against you, the judgment creditor may ask you to provide them with a financial statement and copies of your bank statements and pay slips. You may be wondering what power the judgment creditor has to require you to provide this information.
The simple answer is, a judgment creditor can utilise the various enforcement procedures to obtain evidence of your financial situation to assist them with recovering the judgment debt from you.
Examination Notice
An examination notice is a form that is posted to you which requires you to complete and return a financial statement, along with copies of your financial documents. The notice will provide you with a deadline of at least 28 days in which to complete and return the documents to the judgment creditor.
Should you not return a completed financial statement or the requisite documents by the deadline stated on the notice, the judgment creditor may apply to the court for an examination order (see below) to be held.
The financial information and documents that will typically be requested are:
Examination Order
An examination order is an order by the court that requires you to attend court to be examined as to your financial situation and to produce the requested documents. This is known as an examination hearing. The order will need to be personally served on you. It will state the time, date and location where you are required to attend, as well as the documents you must bring. You should be prepared to answer questions about your assets, employment, expenses, and ability to repay the judgment debt.
If you are unable to attend the examination hearing, you should contact the judgment creditor as soon as possible to arrange an alternative time to adjourn the examination hearing to. You may otherwise provide the financial documents to the judgment creditor before the examination and seek that the court date is cancelled.
Arrest Warrant
If you do not attend the examination hearing, the court may make an order that you comply with the examination order by providing the requisite documents within 14 days, or you may be arrested for the purposes of being brought before the court for the examination.
Key Takeaways
If judgment has been entered against you, do not ignore attempts to enforce judgment. Obtain legal advice and consider engaging with the creditor to discuss how the mater may be resolved.
Product liability insurance protects businesses against liabilities arising from property damage and personal injury caused by their business ‘products’.
It is of importance to consider what is a ‘product’ for the purposes of your policy or contract for insurance. It is necessary to note that each policy for insurance may have a different construction on what is deemed a ‘product’. However, the general position is that a product is:
It is necessary to consider the limitations of product liability insurance. There are a number of circumstances that are not covered by product liability insurance. Those include situations where a third party suffers economic loss as a result of a faulty product. If a third party suffers a loss because a product it purchases it not operational or does not function to the expectation provided, this is a situation where your policy for insurance will not extend cover to you for such a loss.
It is also appropriate to know when a claim can be lodged for product liability. Generally, the damage must have occurred at a time that your insurance policy is in place and not as at the time the product was purchased in order for the policy to respond to a claim.
It is of utmost importance to take advise on whether you have the correct product liability insurance. Failure to have the correct insurance may result in significant liability if a claim is lodged against a faulty product which your business has manufactured, assembled or even supplied.
In the matter of Jams 2 Pty Ltd v Stubbings [2020] VSCA 200, the Victorian Court of Appeal considered and clarified the principles of unconscionability, including statutory unconscionability. Further, Beach, Kyrou and Hargrave JJA were required to consider whether ‘asset-based lending’ was allowed in private lending sector.
What is asset-based lending?
Beach, Kyrou and Hargrave JJA summarised asset-based lending as [1]:
“… involves lending on the value of the assets securing the loan, without any consideration of the borrower’s ability to repay the loan from their own income or other assets. No credit-risk analysis other than the calculation of the loan amount to security value ratio is undertaken by the lender.”
Background
The lender provided two loan facilities to Victorian Boat Clinic Pty Ltd (the Borrower). The loans were guaranteed by Stubbings (the Guarantor), along with mortgages over properties owned by the Borrower and Guarantor. The loan was primarily for the purchase of a property in Fingal.
The Borrower had minimal income, with no other assets except the two properties it granted a mortgage over to the lender. Additionally, the Borrower did not have sufficient funds to pay the deposit for Fingal.
The lender received legal and financial advice certificates, signed by the solicitor and accountant, who provided advice to the Guarantor in relation to the loan facilities.
In September 2015, the two loans were paid to the Borrower and the Fingal property settled. After two monthly instalments, the Borrower defaulted on its loan facility with the lender and the lender sought to enforce its loan agreements.
Decision
Trial Proceedings
The trial judge cast doubt on the asset-based lending system, and found that the loan, mortgage, and guarantee were obtained by unconscionable conduct and ordered for the facility to be set aside.
As the guarantor was unemployed with no assets, except his personal home, the trial judge noted [17]:
“Any person with a modicum of intelligence, who was apprised of the actual nature of the loan and Mr Stubbings’ circumstances, would not have proceeded with the loan. It was bound to end with serious losses and damage to Mr Stubbings”.
Appeal
On appeal, the Court overturned the original decision, and noted that asset-based lending was not inherently unconscionable. Further, the Court was required to consider [2] “relevant factor in deciding whether a particular loan resulted from unconscionable conduct”.
The Court found that that the lender was entitled to rely on the legal and financial certificate, as [132]:
“…both as evidence that Stubbings had consulted a solicitor and an accountant for advice and as to the truth of the matters stated in the certificate’ and determined that they therefore ‘should not be fixed with knowledge of Stubbings’ personal and financial circumstances such that default under the loans was inevitable, as the trial judge appears to have found”.
Proper Test
Beach, Kyrou and Hargrave JJA, referred to the dicta of Gageler J in Australian Securities and Investments Commission v Kobelt [2019] 18 and applied his Honour’s rationale to the ‘proper test’, replacing the previous test of ‘moral obloquy’ or ‘moral tainting’.
Gaegelar J’s judgment clarified the test of statutory unconscionability, which applies to section 12CB of the ASIC Act and section 21 of the ACL. In simple terms, the test requires a Court to consider the whole conduct, before warranting any sanctions.
The Victorian Court of Appeal recited with approval Gageler J’s dicta in Kobelt in relation to the new test as follows [90]:
“The applicable standard is a normative one involving the evaluation of whether the conduct in question is ‘so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience’; in the sense that a court should only take the serious step of denouncing conduct as unconscionable when it is satisfied that the conduct is ‘offensive to a conscience informed by a sense of what is right and proper according to values which can be recognised by the court to prevail within contemporary Australian society’.”
Appeal
On 26 February 2021, the Guarantor successfully obtained special leave to appeal the decision of the Victorian Court of Appeal to the High Court of Australia, who will deal with the issues of asset-based lending and what constitutes unconscionable conduct in the context of guarantee/mortgage.
Implications
As the law currently stands, lenders are entitled to rely on independent legal and financial advice certificates without making any further inquiries. Also, asset-based lending is not inherently unconscionable, nonetheless, lenders should require that borrowers and guarantors provide evidence of them having obtained independent legal and financial advice, especially when they decide not to make their own inquiries into the borrower’s ability to repay the facility.
In Diamond World Jewellers Pty Ltd v Catlin Australia Pty Ltd [2021] NSWSC 1431, Justice Schmidt considered; whether a policy imposed obligations on an insured to keep proper records, the bilateral duty of utmost good faith, and whether an insurer could press for a finding of fraud if it had failed to plead fraud against its insured it in its defence.
Background
On 4 December 2017, Diamond World Jewellers Pty Ltd (Diamond World) was robbed. During the robbery, six glass-topped cabinets were smashed resulting in some jewellery inside the cabinets being damaged. Diamond World alleged that the stock inside the cabinets was all damaged or stolen.
Diamond World lodged an insurance claim with its insurer the next day, and a couple of days later it lodged a claim for all stock lost during the robbery.
Prior to the insurer’s loss adjustor attending the site, the general manager of Diamond World melted the jewellery that was left behind following the robbery.
The insurer granted indemnity to the Diamond World but disagreed on the damages allegedly suffered by Diamond World. The insurer offered Diamond World $500,000. The insurer did not provide any material in support of its offer, which was subsequently rejected by Diamond World.
It was later revealed that the insurer’s lost adjustor made incorrect assumptions in assessing the value of the items stolen and damaged during the robbery. Upon becoming aware of this error, the insurer did nothing.
The insurer alleged that the records kept by Diamond World were incomplete and unsatisfactory.
The insurance contract between Diamond World and the insurer, did not define what was meant by ‘proper records’, it just stated that (cll 1 and 4) [58]:
“the parties’ obligations and the nature and extent of the indemnity. There are three steps:
The insurer asked Diamond World to provide all of its records to substantiate its alleged losses including stocktake lists, handwritten sale records and proof of payments. Diamond World did not have a sophisticated system. However, it was claimed to have been compliant with its legislative obligations and had operated successfully for decades.
Diamond World was unable to provide evidence in support of the damaged stock that was melted down.
Ultimately, Diamond World and its insurer could not agree on the value of the insurance claim and Diamond commenced litigation against its insurer.
Decision
Schmidt AJ granted judgment in favour of Diamond World and made the following findings:
Of interest, Schmidt AJ also dealt with the insurer’s attempt to run an argument of fraud, despite not having pleaded fraud against Diamond World in its defence. He found that:
116. Had fraud been pleaded it would have been for the insurer to establish …
117. This is because a “finding of fraud, including fraud for the purposes of s 56, involves a finding that a person has been untruthful and deliberately so, with the intent of obtaining a financial gain.” Thus, “it is a finding of seriously wrong conduct”: at [57]. Procedural justice therefore not only requires that a person be fairly confronted with the suggestion of fraud at trial, but that it also be clearly pleaded and properly particularised beforehand. Such a pleading must allege not only the acts involved, but that they were done in a manner that involves fraud … [citations omitted]”.
Implications
There are two key implications to be drawn from this case
In NSW, a defendant has 28 calendar days from being served with a statement of claim to file a defence. If a defendant fails to file their defence within these 28 days, the plaintiff has the option to apply for default judgment.
Default judgment is an order made by the court determining the matter in favour of the plaintiff without having a hearing in court. A default judgment can be enforced in the same way a regular judgment can be.
A default judgment may be entered, and the plaintiff may begin enforcement processes, without your knowledge of the judgment. This is why it is crucial that if you have received a statement of claim, you communicate with the plaintiff about resolving the claim or seek further time to file your defence if needed.
If you have started a claim in NSW, you can apply to the court for default judgment after 28 days have passed from the date the defendant was served with the claim. You can only apply for default judgment if the defendant has been properly served with the claim, has not filed a defence, and has not paid you the full debt they owe including the costs and interest owed.
If a default judgment has been made against you, you should take immediate action. Once judgment has been made against you, interest will continue to accrue on the judgment debt until you repay it and this can greatly increase the amount you have to repay.
If you wish to challenge the claim by filing a defence, you will first need to apply to have the default judgment be set aside, which means it will be ‘reversed’ and you will have the opportunity to defend the claim. To set aside default judgment, you will need to demonstrate to the court that you had a good reason for not filing a defence within the requisite time and that you have a genuine defence to put on. If default judgment is set aside, you will have a limited time to file your defence with the court.
As soon as default judgment has been entered, the plaintiff can begin enforcement against you, which may include seizing your property, garnishing your wages or bank account, and requiring you to provide a financial statement and records.
As such, it is important that you do not ignore legal proceedings that are commenced against you.
If you have any questions or concerns please contact Chamberlains and talk to our dispute resolution team today.
Allianz Australia Insurance Limited v Rawson Homes Pty Ltd [2021] NSWCA 224
In 2021, the New South Wales Court of Appeal overturned the primary judge’s ruling in Allianz Australia Insurance Limited v Rawson Homes Pty Ltd [2021] NSWCA 224. The case considered policy wording in relation to a deductible payable following damage caused by hailstorm to houses under construction.
Facts
In February of 2017, a hailstorm passed through Sydney and caused damage to the roofs of 122 houses under construction owned by Rawson Homes. Rawson Homes held an insurance policy with Allianz and filed a claim for the damage as a result of the hailstorm. The claim was accepted by Allianz. However, a dispute arose between the parties with respect to the deductible payable under the policy.
The policy provided that a deductible of $10,000 would apply for “Any One Event” applicable to “Material Damage” claims for “Major Perils”. Allianz’s position was that the deductible should apply for each house that was damaged. On the other hand, Rawson Homes’ position was that the deductible should only apply once and cover all the houses damaged, as the hailstorm was one “event”.
First instance
At first instance the Court decided in favour of Rawson Homes, holding that only one deductible of $10,000 was payable in relation to the claim for damages to the 122 houses.
The Court considered that the hailstorm was one event within the meaning of the deductible clause, which read that the deductible would be payable “for all claims arising out of one event or occurrence”.
Appeal
Allianz appealed decision. At issue on appeal was whether the deductible applied only once, or to each of the building contracts for the 122 houses under construction.
On appeal, the Court found in favour of Allianz, holding that the deductible should apply to each of the 122 houses damaged.
The Court based its decision on an interpretation of the insuring clause. The insuring clause held that cover would be provided for contract works against an indemnifiable event. Based on this, the Court of Appeal held that the deductible should apply to each insured contract, meaning each individual house damaged in the hailstorm.
Key Takeaways
This case demonstrates how insurance contracts with defined terms capable of multiple interpretations can have significant financial consequences. This case also emphasises that the interpretation of insurance policies will come down to the ordinary and natural meaning of the words.
A premium is an amount that an insured pays an insurer for cover under a contract for insurance.
The premium reflects the amount an insurer considers appropriate having regard to the risks associated with granting cover to an insured having regard to an insured’s circumstances.
How are motor vehicle insurance premiums calculated?
When deciding a premium insurers have regard to the following circumstances:
As some circumstances may not have changed when an insurance policy become due for renewal, a question that often arises is ‘Why do my premiums increase?’.
There are several reasons why a premium may increase and include, but are not limited to, the following considerations:
Implications
It is important to consider how premiums are calculated and the likelihood of them increasing. Many insurers will offer cheaper premiums if you as the insured are able to take the necessary steps to reduce your risk. It is also of utmost importance to ensure that you do not unreasonably lodge claims as this will, of course, result in an increase in your premiums.
It is however important to understand that there are other environmental and financial factors that are uncontrollable and may result in an increase in your premiums.
As your business expands, so does your workplace obligations. With a myriad of legislation, regulations and industrial instruments governing employee entitlements across industries and roles, payroll has never seemed more frustrating and time-consuming.
Enterprise Agreements (EA) are the ‘Holy Grail’ for expanding businesses seeking to streamline employee entitlements across the board. Imagine that – simplifying penalty rates, allowances, loadings, leave balances and ancillary entitlements into a source document that is applicable to all current and incoming staff.
What is an Enterprise Agreement?
Depending on the position title and classification of your employees, they may be subject to minimum entitlements prescribed in a relevant Modern Award. In circumstances where you have multiple employees subject to Modern Award coverage or employees in your workplace are subject to multiple Modern Awards, you should consider introducing an EA.
An EA varies the terms of the applicable Modern Award at an enterprise level to implement favourable terms and conditions that capture all employees. An EA is valid for a period of four (4) years at a time and must satisfy the requirements prescribed by the Fair Work Commission for approval.
What is Included in an Enterprise Agreement?
The Fair Work Act 2009 (Cth) (FWA) is the body of legislation which prescribes the National Employment Standards and permitted content to be captured in the EA. Generally, your EA should contain the following:
1. matters relating to the employer-employee relationship:
2. matters relating to the employer-union relationship:
3. terms relating to deductions from wages:
4. terms relating to how the EA will operate:
Why is it your business’s Holy Grail?
Expansion requires a significant investment in the recruitment and retainment of staff – but it does not end there. There are numerous civil and financial penalties that apply should you get it wrong, some of which may impose personal liability on the directors of the corporation.
An efficient and cost-effective solution to minimising exposure to payroll errors and non-compliance is through the introduction of an EA. Put simply, an EA will provide you the benefit of:
How Can We Help?
Chamberlains Law Firm houses a specialist Employment and Workplace Relations team with extensive expertise in negotiating, drafting and implementing an EA compliant with the FWA. We do the all the groundwork, including liaising with the Fair Work Commission and providing a step-by-step guide on the EA administration process. Contact the Workplace Law Team at Chamberlains Law Firm for any questions and concerns.
It all begins with a conversation about your personal business needs and vision for growth. We have the skills, knowledge and acumen to draft bespoke Enterprise Agreements and tailored employment contracts that will give your company one less thing to be concerned about.
***Assisted by Jasmin Mantoufeh***
The ethos of upholding your duty of care and maintaining health and safety in the workplace amid a global pandemic is more than just a mere statement. With the nation-wide vaccination roll-out in full force and the summit of Covid-19 cases near, the Australian workforce has transformed and adapted to being almost entirely remote.
As we trudge through the peak of Covid-19 case numbers, SME’s and multi-national corporations alike are preparing a roadmap back to normality. This begs the question – how do we go back to normal with Covid-19 still looming?
The Law
A key consideration for employers at the moment is determining whether a mandatory vaccination policy should be implemented in their workplace. However, there are numerous ‘boxes’ that must be checked before enforcing such a policy or other change in the workplace and directing employees to comply.
Recent case law suggests that mandatory vaccination directions are likely to be lawful, provided that they are genuinely made to protect the health and safety of employees and other close contacts in the workplace.[i] However, decisions must be lawful and reasonable. While such directions may be lawful, they may not be reasonable unless an employer has properly discharged its consultation obligations under relevant work health and safety legislation.
The Requirements
The degree of consultation required to be implemented varies across industries with industrial instruments, such as Modern Awards and Enterprise Agreements, imposing additional obligations for the employer to discharge.
As a rule of thumb, employers should always to any governing industrial instrument, employment contract and/or workplace policy to confirm what consultation obligations they must adhere to.
Employers also need to assess the who, how and when matrix. The Fair Work Commission has emphasised that consultation is a collaborative process that extends far beyond informing staff of proposed changes. With reference to any applicable instrument or contract, employers need to determine:
Ticking the above boxes alone does not steer employers into the clear. To consult “as far as reasonably practicable”, employers must equally provide employees with a reasonable opportunity to respond, express their views, raise work health and safety concerns and contribute to the decision-making process before deciding to enforce any workplace change.
Do’s & Don’ts
With greater guidance providing a sense of clarity, below are a few do’s and don’ts to bear in mind:
Do – Provide a timeline which provides employees ample opportunity to respond and discuss.
Don’t – Inform staff that a definite decision was determined and will be administered.
Do – Circulate an initial survey to gauge a consensus and follow-up.
Don’t – Fall into the trap of not documenting the consultation process and meeting minutes.
Do – Actively listen to employees and propose flexible working arrangements if possible.
Don’t – Withhold information regarding the reasons, rationale and data supporting the workplace change.
Key Take Aways
Consultation can be a multi-faceted and complex process which can expose employers to an abundance of claims ranging from anti-discrimination, general protections, work health and safety and unfair dismissals. Avoid the costly exercise and consult our Workplace Team to streamline the process.
[i] Construction, Forestry, Maritime, Mining and Energy Union & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059.
Contact the Workplace Law Team at Chamberlains Law Firm for any questions and concerns.
***Assisted by Jasmin Mantoufeh***