Background
Elkaim AJ dealt with two notices of motion in proceedings brought by Perpetual Corporate Trust Limited. The plaintiff had loaned $9.6 million to the second and third defendants on 12 October 2022 and $10.395 million to the first defendant in June 2023. The fourth defendant, James Michael Gardner Moses, guaranteed the loans. The borrowers defaulted, La Trobe Financial Services Pty Ltd took possession of secured property on 28 November 2025, and receivers and managers were appointed to the first defendant on 26 March 2026. The statement of claim was filed on 8 April 2026, and default judgment was entered against the first, second and third defendants on 5 June 2026.
The third and fourth defendants filed a motion on 23 July 2026 seeking effectively to stay that default judgment and obtain leave to file and serve a defence and cross-claim. The plaintiff’s motion of 14 August 2026 sought judgment against Mr Moses for a specified amount and dismissal of the statement of cross-claim filed by the third and fourth defendants on 24 July 2026. Mr Moses was, or had been at all relevant times, the sole director, secretary and shareholder of each of the first three defendants.
Shortly before the hearing, the defendants’ solicitor sought an adjournment, referring to newly discovered facts, the Queensland District Court decision in Kaess v Moses [2026] QDC 172, and a property sale said to be at a price well below actual value. He suggested that injunctive relief might stop the sale and that purchasers might be joined. The Court nevertheless found that much of the apparent substance disappeared when the whole case was examined.
The Court’s Holding
The Court entered judgment for the plaintiff against Mr Moses in the sum of $24,496,230.60, together with interest from 16 March 2026 until the decision date in accordance with the Residents Guarantee and the Painters Guarantee. The decisive point was his own admission: “That leaves the fourth defendant , who by his pleadings , specifically admits that he owes the plaintiff the sums referred to in paragraphs 23 ($12,706,895.35) and 39 ($11,789,335.25) of the statement of claim.” Those admitted figures totalled the judgment sum.
The Court also found a distinct lack of evidence supporting the defendants’ motion and the proposed adjournment. An assertion that the third defendant had been re-registered was not substantiated by an in-court examination of the relevant corporate website, and no independent evidence established re-registration. Although recently discovered matters were invoked, no emails or draft affidavits establishing the basis for an adjournment were produced. Elkaim AJ therefore saw no basis to grant the adjournment or refuse the plaintiff’s motion.
Any cross-claim by Mr Moses against the plaintiff would be entirely inconsistent with his admissions and was not established by his evidence. The Court dismissed the pleadings he filed on 24 July 2026 under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), dismissed the third and fourth defendants’ notice of motion, and ordered Mr Moses to pay the plaintiff’s costs of the proceedings against him. No order was made as to the costs of the defendants’ motion.
Key Takeaways
- A guarantor’s express admissions of the two claimed sums supported judgment for $24,496,230.60 and contractual interest.
- Assertions of new facts, possible injunctive relief and corporate re-registration did not justify an adjournment without supporting evidence.
- The proposed fourth-defendant cross-claim failed because it conflicted with his admissions and lacked evidentiary support.
- The orders did not determine or extinguish any rights the first three defendants might have to challenge their default judgments or pursue claims against the plaintiff.
Why It Matters
The decision illustrates the practical importance of pleadings and evidentiary preparation when responding to a default-judgment application. A late adjournment request based on potentially significant developments was insufficient where the defendants supplied no corroborating material, while the fourth defendant’s admissions provided a direct basis for judgment.
The ruling is confined to these motions and parties. It did not set aside the existing default judgments against the first three defendants. The Court expressly noted that, if a genuine reason exists, those defendants may still seek to set aside those judgments, subject to their corporate existence, and that the orders were not intended to affect their claims against the plaintiff.