Glover v Kaji Australia Pty Limited

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Glover v Kaji Australia Pty Limited [2020] NSWCA 222

Hearing dates:

14 July 2020

Decision date:

22 September 2020

Before:

Bathurst CJ at [1];
Macfarlan JA at [2];
White JA at [62]

Decision:

(1)    Appeal dismissed with costs.

(2)    Existing stay on execution and issue of a writ of possession discharged.

Catchwords:

TORTS – fraudulent conspiracy – appellant alleged multiple parties fraudulently conspired to procure him to obtain a short-term loan he was unable to repay – case entirely circumstantial with no direct evidence – matters relied upon fell well short of proving allegations to the relevant Briginshaw standard – findings by primary judge credit-based and not shown to be in error

Legislation Cited:

Evidence Act 1995 (NSW)

Cases Cited:

ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 94 ALJR 715

Blatch v Archer (1774) 1 Cowp 63; 98 ER 969

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Browne v Dunn (1894) 6 R 67

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785

Category:

Principal judgment

Parties:

Johann Benson Glover (Appellant)
Kaji Australia Pty Limited (First Respondent)
William Bradley Webster (Second Respondent)
Mercia Financial Solutions Pty Ltd (Third Respondent)
Richard Nicholson (Fourth Respondent)
Rodney Shields (Fifth Respondent)

Representation:

Counsel:
Mr R Newell (solicitor) (Appellant)
Mr P Folino-Gallo / Mr N Seow (First and Second Respondents)
Mr D Lloyd / Mr N Condylis (Third and Fourth Respondents)
Self-represented Fifth Respondent

Solicitors:
L C Muriniti & Associates (Appellant)
Shields Lawyers (First and Second Respondents)
DLA Piper Australia (Third and Fourth Respondents)
Self-represented Fifth Respondent

File Number(s):

2020/12483

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 1779

Date of Decision:

17 December 2019

Before:

Davies J

File Number(s):

2014/105767

Judgment

1. BATHURST CJ: I agree with orders proposed by Macfarlan JA and with his Honour’s reasons.

2. MACFARLAN JA: On 21 February 2011 Mr Johann Glover, the appellant, borrowed the sum of $115,000 from Kaji Australia Pty Limited (“Kaji”) and its controller, Mr William Webster (the first and second respondents on this appeal). The loan was for a period of two months and was thus repayable on 21 April 2011. Interest was payable at the rate of 5% per month, reducible to 3% per month for prompt payment. Mr Glover did not repay the loan, with the result that as at 17 December 2019 (the date of the primary judgment), not only was the principal amount of $115,000 outstanding but interest of $358,455 had accrued (calculated at 3% per month at the election of Kaji and Mr Webster). The loan was secured over Mr Glover’s home.

3. The proceedings at first instance were commenced by Kaji and Mr Webster against Mr…