Giurlia v Right Fast Capital Pty Ltd

Supreme Court

New South Wales

Medium Neutral Citation:

Giurlia v Right Fast Capital Pty Ltd [2022] NSWSC 750

Hearing dates:

2 June 2022

Date of orders:

2 June 2022

Decision date:

02 June 2022

Jurisdiction:

Equity

Before:

Ball J

Decision:

(1)   Judgment in favour of the plaintiff against the second defendant in the sum of $191,581.32;

(2)   The second defendant pay the plaintiff's costs of the proceedings

Catchwords:

CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters — Whether plaintiff can recover damages pursuant to s 236 of the Australian Consumer Law in respect of loans made to the first defendant that are unpaid

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law

Cases Cited:

Houghton v Arms (2006) 225 CLR 553; [2006] HCA 59

Williams v Pisano (2015) 90 NSWLR 342; [2015] NSWCA 177

Category:

Principal judgment

Parties:

Steve Giurlia (Plaintiff)
Right Fast Capital Pty Ltd (First Defendant)
Neil Andrew Cato (Second Defendant)

Representation:

Counsel:
M Bennett (Plaintiff)

Solicitors:
Marsdens Law Group (Plaintiff)

File Number(s):

2021/197121

Publication restriction:

None

EX TEMPORE Judgment

1. In these proceedings, the plaintiff seeks to recover loans he made totalling $180,000 which he says he made to the first defendant at the request of the second defendant. Judgment has already been entered against the first defendant, which is now in external administration. The evidence is that the second defendant was the sole director and shareholder of the first defendant.

2. The plaintiff originally obtained default judgment against the second defendant. That default judgment was set aside and the second defendant filed a defence in the proceedings on 2 November 2021. There was, however, no appearance by the second defendant today, although I am satisfied that he was on notice of the proceedings. In particular, in an email dated 30 May 2022, the second defendant said, in response to an email that the plaintiff's solicitors had sent to him:

Thank you for your email. As previously noted, I am unable to provide any representation for this matter and will not be in attendance myself.

3. The plaintiff is a retired painter who is seventy-seven years old. His first language is not English. In about late 2019 he and his wife sold their home in Nowra, New South Wales and after renting for a period of time were looking at buying in the Campbelltown area to be closer to their daughter. In order to buy a house that the plaintiff had identified as being suitable, he needed to borrow approximately $150,000. He and his wife had savings of approximately $280,000 at the time. The plaintiff had applied for loans to at least two banks, but perhaps unsurprisingly was unsuccessful. The vendor of the property which the plaintiff was interested in buying referred the plaintiff to the second defendant. Subsequently, the plaintiff and the second defendant met.

4. The plaintiff's deposes in his affidavit to the following conversation he had with the second defendant:

Neil:…