IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Commercial Court
COMMERCIAL LIST
S ECI 2024 05179

COMMONWEALTH BANK OF AUSTRALIA (ABN 48 123 123 124)	Plaintiff	
		
v		
		
RGV TRANSPORT PTY LTD (ACN 073 706 877)	Defendant	

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JUDGE:	CONNOCK J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	30 May 2025	
DATE OF JUDGMENT:	30 May 2025 ex tempore, revised 11 June 2025	
CASE MAY BE CITED AS:	Commonwealth Bank of Australia v RGV Transport Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2025] VSC 327	

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DEFAULT JUDGMENT – Judgment in default of appearance pursuant to r 21.03(1)(d) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Interlocutory judgment in default of appearance in respect of delivery of goods or their value to be assessed under r 21.03(1)(d) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Rules 2.04, 21.03(1)(d), 46.04, 75.05, 75.06, and Forms 46A, 60G, and 60L of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

PRACTICE AND PROCEDURE – Civil Procedure Act 2010 (Vic) – Possible questions arising regarding compliance with Civil Procedure Act 2010 (Vic) where relatively small claims brought in the Supreme Court when within the jurisdiction of the County Court of Victoria or the Magistrates’ Court of Victoria.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr X Kerlin, Solicitor 	HWL Ebsworth Lawyers	
			
For the Defendant	No appearance		

HIS HONOUR:
Introduction and summary
1	On 10 December 2024, the plaintiff (plaintiff or Commonwealth Bank) filed a judgment in default of appearance against the defendant (defendant or RGV Transport) entitled ‘JUDGMENT FOR DEBT & POSSESSION’ (Default Judgment). The Default Judgment was in the following terms:
THE JUDGMENT OF THE COURT IS THAT:
1.	The Defendant within 14 days after service of a copy of this order deliver to the Plaintiff at Slattery’s Auction House, 41-45 Hydrive Close, Dandenong South Victoria 3175 the Goods referred to in paragraph 4(a) in the Statement of Claim as the 2016 IVECO Eurocargo ML 160E28 4 x 2 Sleeper Cab Low Roof Engine with Crane Truck with VIN or Chassis Number ZCFA1MM0402658271 and Engine Number 1434791.
2.	The Defendant pay the Plaintiff the sum of $92,131.07 together with interest of $1,689.80.
3.	The Defendant pay the Plaintiff’s costs of $5,994.40.
2	The Default Judgment also contained what was said to be a penal notice in accordance with r 66.10(3) of the Rules, as follows:
Notice to the Defendant in accordance with Rule 66.10(3) of the Supreme Court (General Civil Procedure) Rules 2015.
To the Defendant RGV TRANSPORT PTY LTD (ACN 073 706 877):
Take notice that if you, RGV TRANSPORT PTY LTD (ACN 073 706 877), refuse or neglect to deliver to the Plaintiff the Goods referred to in paragraph 1 of this Judgment within the time specified therein, your director, Rohan Gardiner Veale, will be liable to imprisonment or sequestration of his property.
3	As is apparent, the Default Judgment required a ‘Sleeper Cab Low Roof Engine with Crane Truck’ (Vehicle) to be delivered up by RGV Transport by the specified time at the stated address, and the payment of an outstanding debt by RGV Transport. It can also be seen that Mr Veale is alleged to be the director of RGV Transport.
4	In its summons filed 28 March 2025 (Summons), the plaintiff stated and recorded on the face of the Summons that RGV Transport was the ‘First Defendant’ rather than the ‘Defendant’ (as appears on the writ and amended statement of claim), and stated and recorded Rohan Gardiner Veale as the ‘Second Defendant’. The Summons was headed, ‘SUMMONS FOR COMMITTAL’ and addressed only to the person said to be the ‘Second Defendant’, Mr Veale. The Summons stated that Mr Veale was summoned to attend before the Court on the hearing of an application by the Commonwealth Bank for, among other things, an order for the committal to prison of Mr Veale for an alleged failure to comply with the Default Judgment. The Summons recorded that the application would be heard at the Supreme Court, 210 William Street, Melbourne on a date to be fixed, and was supported by affidavits of process servers and the plaintiff’s solicitor, Mr Kerlin, the detail of which I have considered but is not necessary to traverse or set out in these reasons for present purposes.
5	The proceeding and the Summons were allocated to me for judicial management and hearing, and the plaintiff was notified that a directions hearing would take place on 30 May 2025. Mr Kerlin appeared for the Commonwealth Bank and there was no appearance for Mr Veale.
6	For the reasons that follow, I made orders at the hearing that:
(1)	The plaintiff’s Summons filed 28 March 2025 naming Rohan Gardiner Veale as the second defendant is struck out.
(2)	The plaintiff bear its own costs of and incidental to the Summons filed 28 March 2025, including the hearing on 30 May 2025.
(3)	There is liberty to apply.
Reasons
7	There were a number of considerations taken into account that resulted in the exercise of my discretion to strike out the Summons on the Court’s own motion. Briefly, they were as follows.
8	First, it is to be observed that, by its Summons, the Commonwealth Bank sought to have Mr Veale, as the alleged sole director of the defendant, RGV Transport, imprisoned for what was alleged to have been a ‘failure to comply with the Default Judgment for Debt and Possession’. Self-evidently, the Commonwealth Bank’s application was directed at depriving Mr Veale of his liberty as a method of enforcement of the Default Judgment.
9	Second, although Mr Veale had been named as the second defendant on the Summons, he was not a party to the proceeding at the time the Default Judgment was entered or at any other time, and no application had ever been made by the Commonwealth Bank to have him joined as a party to the proceeding.
10	Third, although it was submitted by the plaintiff that the appropriate method for bringing a contempt proceeding against Mr Veale (as a non-party to the proceeding), seeking his committal to prison, was by a summons in Form 46A pursuant to rr 46.02 and 46.04 of the Rules, that submission cannot be accepted. As raised with the plaintiff at the hearing, and relevantly, the procedure to be followed for contempt proceedings of the kind in question is addressed in Order 75 of the Rules. The relevant procedure for the alleged contempt is expressly addressed in rr 75.05 and 75.06 of the Rules, which provide as follows:
75.05	Application
(1)	This Part applies to—
(a)	contempt of court committed in the face of the Court;
(b)	any other contempt of the Court;
(c)	contempt of an inferior court.
(2)	In the case of contempt of court committed in the face of the Court, the procedure under this Part is alternative to that under Part 2.
75.06	Procedure
(1)	Application for punishment for the contempt shall be by summons or originating motion in accordance with this Rule.
(2)	Where the contempt is committed by a party in relation to a proceeding in the Court, the application shall be made by summons in the proceeding.
(3)	Where paragraph (2) does not apply, the application shall be made by originating motion which—
(a)	shall be entitled “The King v.” the respondent, “on the application of” the applicant; and
(b)	shall require the respondent to attend before a Judge of the Court.
(4)	The summons or originating motion shall specify the contempt with which the respondent is charged.
(5)	The summons or originating motion and a copy of every affidavit shall be served personally on the respondent, unless the Court otherwise orders.
11	The Summons was directed to Mr Veale, not to the defendant, and, as is apparent from the terms of the Summons, the alleged contempt is said to have been committed by Mr Veale, as a director of RGV Transport, by a failure to comply with the Default Judgment. That being so, and as was understandably accepted by the Commonwealth Bank, the relevant rules therefore required that the Commonwealth Bank’s application to commit Mr Veale to prison be made by an originating motion in accordance with the procedure referred to in rr 75.06(3), (4), and (5), including personal service of the same. As the evidence demonstrated, and the plaintiff accepted, this had not occurred.
12	Fourth, although the Court has the power pursuant to (at least) r 2.04 of the Rules to dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises, no application was made by the Commonwealth Bank for the Court to dispense with compliance with rr 75.06(3)–(5) in respect of its committal application against Mr Veale. In my view, this was an appropriate position for the plaintiff’s solicitor to take. I note in this context that courts have consistently been conscious of the importance of strictness in procedure and proof, and conscious not to relieve a party from the consequences of non-compliance with rules of court where the liberty of an individual is in issue or jeopardy, unless the evidence shows that the requirements of, and purpose for, the particular rule(s) have been fulfilled in a manner otherwise than in the form provided for in the relevant rules. I refer, for example, to the observations of Kaye J in Clifford v Middleton; the Victorian Court of Appeal’s reasons in Miller v Eurovox Pty Ltd; and the observations of Nettle J in Primelife Corp Ltd v Andrejic that ‘Attachment proceedings being penal and affecting the liberty of the subject warrant the utmost strictness in procedure and proof.’ 
13	Fifth, although I take into account the evidence before me regarding the service of the Summons and affidavit material on Mr Veale, and statements made from the Bar table that Mr Veale was notified of the directions hearing, there had been no attempt by the Commonwealth Bank to comply with the express and specific procedure provided for in r 75.06 of the Rules, and this occurred notwithstanding that the application had as its express object the committal of Mr Veale to prison. Rather, Mr Veale was simply, but impermissibly, named on the Summons as the ‘Second Defendant’, despite never having been joined to the proceeding. 
14	Further, having regard to the above authorities, and to employ the words of Kaye J in Clifford v Middleton, I do not consider that the evidence showed that the requirements of, and purpose for, the particular procedure in r 75.06 of the Rules had been fulfilled by the impermissible manner in which the Commonwealth Bank applied to commit Mr Veale to prison as a result of his alleged failure to comply with the Default Judgment. In this context it may also be noted that, except for the statements from the Bar table, there was no evidence before the Court regarding Mr Veale having been personally or otherwise served with, among other things, notice of the date, time, and location of the hearing on 30 May 2025.
15	Sixth, and in any event, taking into account all of the circumstances, and given the nature of the relief sought against Mr Veale by the Summons, it would not have been appropriate in this case to dispense with compliance with the requirements of r 75.06 of the Rules in connection with the Commonwealth Bank’s application to commit Mr Veale to prison.
16	Seventh, in exercising my discretion to strike out the Summons, I have taken into account the Court’s obligations under the Civil Procedure Act 2010 (Vic) (CP Act), including the Court’s obligation under s 8 of the CP Act to seek to give effect to the overarching purpose in s 7 of the CP Act, and I have also had regard to the objects in s 9 of the CP Act. In my view, in the particular circumstances of this case, and taking into account the material before me, it would not be just, efficient or fair to allow the Commonwealth Bank to seek to commit Mr Veale to prison by proceeding in the impermissible way that it did, including by not taking any step to comply with the express and specific procedure provided for in r 75.06 of the Rules.
17	Eighth, notwithstanding the well-accepted requirement that any charges of contempt be specifically and distinctly articulated in the document pursuant to which a contempt charge or allegation is brought, the charge in paragraph 1 of the Summons was in my view at least ambiguous. This is because the charge sought an order for committal of Mr Veale ‘… for failure to comply with the Default Judgment for Debt and Possession …’. The charge does not identify or specify which one or more of the three paragraphs of the Default Judgment are relied upon in support of the alleged contempt that is said to warrant Mr Veale’s committal to prison. That ambiguity is compounded in part given the existence and terms of the three individual paragraphs of the Default Judgment dealing separately with each of the delivery up, the debt, and costs claims, and the fact that the penal notice appears to be directed only to paragraph 1 of the Default Judgment regarding delivery up. That said, even if there was no ambiguity of the kind that I have described, or I am wrong in my conclusion that such ambiguity exists, for the reasons earlier mentioned, I would have struck out the Summons in any event. 
Other matters
18	I observed during the hearing that the relatively small claim the subject of this proceeding fell within the jurisdiction of the County Court of Victoria, and also appeared to be within the monetary and other jurisdictional limits of the Magistrates’ Court of Victoria. In so doing, I also observed that I was aware of a number of other cases commenced by the Commonwealth Bank in this Court for relatively small amounts connected with vehicle or equipment loans and transactions. Although I did not consider this to be a relevant matter to be taken into account for the purpose of my ruling that the Summons should be struck out, I added some observations regarding the CP Act in this context when delivering my oral reasons ex tempore. Briefly, I observed that the filing of relatively small monetary claims by the Commonwealth Bank in the Supreme Court of Victoria in circumstances where they fall within the jurisdiction of the Magistrates’ Court of Victoria or the County Court of Victoria, may, depending on the circumstances, raise questions or issues as to whether the filing of such proceedings in this Court by the Commonwealth Bank sits in tension with the Commonwealth Bank’s and/or its solicitors’ respective obligations under the CP Act. As indicated during the hearing, these issues need not be further considered or addressed at this time.
19	Finally, and although not addressed or considered at the time of determining to strike out the Summons, it is apparent that if this committal application (or other similar applications) returns before the Court it will be necessary for the relevant parties to consider and make submissions to the Court regarding the material question of whether the entry of the Default Judgment seeking delivery up of the Vehicle in the form that it was entered was irregular, not permitted by the terms and operation of r 21.03(1)(d) of the Rules, and should be set aside. That rule relevantly provides as follows:
21.03  Judgment for recovery of debt, damages or property
(1)	Where a claim is made for the recovery of a debt, damages or any property, whether or not another claim is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with Rule 21.01 or Rule 21.02, the plaintiff may–
	…
(d)	for the detention of goods, enter interlocutory judgment against that defendant— 
(i)	either for the delivery of goods or their value to be assessed or for the value of the goods to be assessed; and 
(ii)	if a claim is made for the recovery of damages for the detention of the goods, for the damages to be assessed.
20	Although I have, understandably, not yet heard any submissions on the point from the plaintiff, the defendant, or Mr Veale, I note that the rule provides for the entry of ‘interlocutory judgment’ only, and that r 21.03(1)(d)(i) provides only for the entry of judgment for ‘either’ of the two alternatives stated in that sub-rule, as is also reflected in the form of interlocutory judgment in Form 60L, and discussed in a number of authorities. As a preliminary observation, and subject to hearing and considering any later submissions that may be made on the topic, it appears that neither r 21.03(1)(d), nor the form of judgment in Form 60L contemplate or permit the entry of default judgment for only the delivery up of goods — as opposed to (relevantly) the entry of interlocutory judgment in default for the ‘delivery of goods or their value to be assessed’. As to the authorities I mentioned, see, for example, the discussion of the rule in the context of the tort of detinue and its origin in: Neil J Williams, Civil Procedure Victoria, at [21.03.130–135] and [66.04.0], and the cases there cited; General & Finance Facilities Ltd v Cook Cars (Romford) Limited; Re Gillie; Gwinnett v Day & Anor; Buttigieg v VL Finance Pty Ltd; McKeown v Cavalier Yachts Pty Ltd; and Tuohey v Tuohey. That said, for present purposes this issue also need not be further explored at this time. 
Conclusion and proposed orders
21	As was ordered, it was in my view just, efficient, fair and appropriate that the Summons be struck out, and that the Commonwealth Bank bear its own costs of and incidental to the Summons, including the costs of the hearing on 30 May 2025.