Mitchell (as trustee for the Jan & Wayne Mitchell Retirement Fund) v Edwards

These reasons concern the plaintiffs’ notice of motion filed on 27 March 2026 seeking default judgment for a liquidated claim against the second to seventh defendants in the amount of $1,819,007.47 pursuant to rr 16.3 and 16.6 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR).

The proceedings were commenced by statement of claim filed on 23 December 2025.

The plaintiffs are the trustees of a self-managed superannuation fund known as the “Jan & Wayne Mitchell Retirement Fund”.

According to the statement of claim, the first defendant Mr Christopher Edwards was at all material times the sole director and secretary of the second to seventh defendants and a director of the eighth defendant.

The relief claimed in the statement of claim is damages or compensation pursuant to ss 236 and 237 of the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) and, further or alternatively, damages and/or equitable compensation. Consistently with r 14.13(1) of the UCPR, the prayers for relief in the statement of claim do not stipulate the monetary amount sought by way of damages or compensation pursuant to ss 236 and 237, general damages or equitable compensation. The statement of claim pleads causes of action for alleged misleading or deceptive conduct by all of the defendants, alleged breaches of contract by all of the defendants, alleged breach of duty of care by the first defendant, alleged breach of fiduciary duty by the first defendant, a claim in restitution for money had and received against all of the defendants, and alleged unconscionable conduct by all of the defendants.

The plaintiffs’ application for default judgment is made against the second to seventh defendants only in circumstances where they acknowledge that the first and eighth defendants have not yet been served.

The plaintiffs have adduced evidence from their solicitor that he placed a sealed copy of the statement of claim, together with a covering letter to Mr Edwards, in an envelope addressed to Mr Edwards at 209-211 Windsor Street, Richmond NSW 2753 on 6 January 2026, which he then posted at the Riverstone Post Shop that day. ASIC extracts for each of the second to seventh defendants annexed to the solicitor’s affidavit record that the registered office of each of those defendants is “Suite 9” or “Shop 9” at that address. The solicitor’s affidavit also annexes an Australia Post Tracking report which indicates the envelope was delivered to a post office box in Richmond on 8 January 2026.

Given that the envelope was addressed to Mr Edwards at 209-211 Windsor Street, Richmond, and not to Suite 9 or Shop 9 at that address, the evidence does not establish that the envelope containing the statement of claim was posted to and delivered to that part of 209-211 Windsor Street, Richmond where the registered office of the second to seventh defendants is located. It follows that the evidence does not establish valid service on the second to seventh defendants pursuant to s 109X(1)(a) of the Corporations Act 2001 (Cth) or r 10.22 of the UCPR and therefore does not establish that they are in default within the meaning of r 16.2 of the UCPR. [1]

The plaintiffs also adduced evidence from their solicitor that he served the notice of motion for default judgment and supporting affidavit on Mr Edwards personally at 209-211 Windsor Street, Richmond on 16 April 2026. Those materials are not said to have included the statement of claim. Accordingly, that evidence does not establish valid service on the second to seventh defendants pursuant to s 109X(1)(b) of the Corporations Act or r 10.22 of the UCPR on 16 April 2026. Even if the second to seventh defendants had been validly served with the statement of claim on that date, they would not presently be in default. [2]

That is sufficient reason to dismiss the motion for default judgment.

A further reason is that the plaintiffs’ claims are not a claim “for a debt or liquidated claim” within the meaning of r 16.6(1) of the UCPR. The plaintiffs’ submissions in support of the application for default judgment relied on the claim for damages for alleged misleading or deceptive conduct. It was submitted that this claim is a liquidated claim because the statement of claim quantifies the loss that the plaintiffs claim to have suffered as the amount of money paid by the plaintiffs to the eighth defendant on four specific occasions that are particularised in the statement of claim. Contrary to the plaintiffs’ submissions, the quantification of the amount does not render what is otherwise a claim for unliquidated damages a liquidated claim within the meaning of r 16.6(1) of the UCPR. [3]

For those reasons, the orders of the Court are as follows: