Capital Securities Xvii Pty Ltd v Dey
[2019] NSWSC 1844
•18 December 2019
Supreme Court
New South Wales
Medium Neutral Citation: Capital Securities XVII Pty Ltd v Dey [2019] NSWSC 1844 Hearing dates: In chambers, 14 November 2019 Date of orders: 14 November 2019 Decision date: 18 December 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Pursuant to the notice of motion filed on 19 August 2019, judgment for the second cross-claimant against the third cross-defendant to the second cross claim for damages as referred to in the statement of claim to be assessed.
(2) The third cross-defendant to the second cross-claim pay the second cross claimants costs.Catchwords: CIVIL PROCEDURE – default judgment – default in entering appearance – default in filing defence – orders entering default judgment made Category: Procedural and other rulings Parties: Capital Securities XVII Pty Ltd (Plaintiff)
Epshita Dey (First Defendant)
Shantanu Dey (Second Defendant)
Dey Enterprises Pty Ltd (Third Defendant)
Registrar General of NSW (Fourth Defendant)
Peter Livers trading as Slattery Thompson Solicitors (Fifth Defendant)
Harry Chand (Sixth Defendant)
Syed Mansoor Bokhari (Seventh Defendant)
Adam Lee (Eighth Defendant)
Muslahuddin Zargham Syed (Ninth Defendant)
Glen Edward Cussan (Tenth Defendant)
Vicki Grey (Eleventh Defendant)
Peter Leigh Harrison (Twelfth Defendant)
Michael William Joseph (Thirteenth Defendant)
Roger Mattar (Fourteenth Defendant)
David Russell Murray-Nobbs (Fifteenth Defendant)
Rory Michael Nott (Sixteenth Defendant)
Mark Raymond Procailo (Seventeenth Defendant)
Serena Roppolo (Eighteenth Defendant)
Archibald Lang Smith (Nineteenth Defendant)
Glen Walter Williams (Twentieth Defendant)
Paul Wong (Twenty-first Defendant)Representation: Solicitors:
QBM Lawyers (Plaintiff)
Freedman and Gopalan Solicitors (First Defendant)
Payne Lawyers (Second Defendant)
NSW Department of Customer Service (Fourth Defendant)
K & L Gates (Fifth Defendant)
Redline Legal (Sixth Defendant)
David Leamey Solicitor and Barrister (Seventh Defendant)
Sparke Helmore (Tenth – Twenty-first Defendants)
File Number(s): 2018/205539 Publication restriction: Nil
Judgment
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By notice of motion filed 19 August 2019, the second cross-claimant (Epshita Dey) seeks judgment in its favour against the third cross-defendant to the second cross-claim (Adam Lee) for damages as referred to in the statement of claim to be assessed and for the third cross-defendant to pay her costs.
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On 14 November 2019 I made orders in chambers in accordance with the orders sought in the notice of motion. These are my reasons for making those orders.
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Filed in support of that notice of motion is an affidavit of the second cross-claimant affirmed on 16 August 2019 deposing to certain relevant matters and attaching an affidavit of service of process and documents upon the third cross-defendant.
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The third cross-defendant has failed to enter an appearance or defence to the second cross-claim. The affidavit of service indicated that he was served personally on 3 May 2019 at Unit 1, 5 Robert Street, Ashfield. He has taken no active part in the proceedings at all.
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By way of background the plaintiff, Capital Securities XVII Pty Ltd, alleges that it advanced on 11 May 2017 the sum of $1,015,000 to the third defendant company pursuant to a loan agreement supported by guarantees in the name of the second and first defendants, and further supported by a mortgage over their family home at Cherrybrook.
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The first defendant denies that she was aware of or party to any such loan application, or party to the incorporation of the third defendant, and denies that she received any funds under the alleged loan agreement or that she executed any loan securities in any capacity.
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The second defendant also denies any knowledge of, or receipt of, any of the funds and denies executing a guarantee or mortgage over their family property.
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Evidence available annexed to the affidavit of the first defendant indicates that Kemp Strang solicitors in a document dated 11 May 2017 in respect of the purported advance to Dey Enterprises Pty Ltd (produced under subpoena by the plaintiff) indicated via a copy of the trust account statement of that firm that a sum of $940,662.63 was received on 12 May 2017.
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Also appended to the affidavit is an email dated 15 May 2017 to Slattery Thompson purporting to have been issued by the first defendant but which she says was not issued by her or with her knowledge or consent, directing that firm to deposit amongst other things the sum of $600,000 to an account with the name “Star Pty Ltd” at National Australia Bank account. A cheque appended to the affidavit is stated to pay “The Star Bank Pty Ltd by way bank to bank cash” in the sum of $600,000.
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Ms Dey deposes to evidence available that indicates that that was done on 17 May 2019 and on that day there was a withdrawal of $400,000 and then $200,000 on the following day.
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It is the first and second defendant’s case, as second cross-claimants against Mr Lee, that he had an involvement in those events.
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He has taken no active role in the proceedings to defend that and other assertions about him.
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I am satisfied that the orders sought in the notice of motion should be granted.
Orders
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Pursuant to the notice of motion filed on 19 August 2019, judgment for the second cross-claimant against the third cross-defendant to the second cross claim for damages as referred to in the statement of claim to be assessed.
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The third cross-defendant to the second cross-claim pay the second cross claimants costs.
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Decision last updated: 18 December 2019
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