Resort Living Group Pty Limited v Strategic Advisers Group LLC (No 2)

[2021] NSWSC 1473

Supreme Court

New South Wales

Medium Neutral Citation:

Resort Living Group Pty Limited v Strategic Advisers Group LLC (No 2) [2021] NSWSC 1473

Hearing dates:

16 November 2021

Date of orders:

16 November 2021

Decision date:

16 November 2021

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders:

(1) The First and Second Defendants are to file affidavits in support of their amended defence within 14 days (30 November 2021).

(2) The matter is listed on 2 December 2021 at 9am before the Registrar.

(3) The Plaintiff’s notice of motion dated 29 July 2021 seeking summary judgment is dismissed.

(4) The Plaintiff’s application to strike out the First and Second Defendant’s defence for want of due despatch is stood over to 2 December 2021 at 9am before the Registrar.

(5) The Defendant’s notice of motion dated ­­­­30 June 2021 seeking dismissal is stood over to the Registrar on 9am on 2 December 2021.

(6) I decline to assess damages in favour of the Plaintiff as against the Third Defendant as the Third Defendant does not appear to be a legal entity.

(7) The court is to forward a copy of this judgment to the parties by email.

(8) Costs of today are reserved.

The Court notes:

(1) Mr David Hawkins was only granted leave to appear for the Plaintiff only in the applications before me.

Catchwords:

CIVIL PROCEDURE – No point of principle

Category:

Procedural rulings

Parties:

Resort Living Group Pty (Plaintiff)
Strategic Advisers Group LLC (First Defendant)
Saviano Sebastian (Second Defendant)
Kumar Solutions Management (Third Defendant)

Representation:

Plaintiff (Self Represented)
First Defendant (No appearance)
Second Defendant (No appearance)
Third Defendant (No appearance)

File Number(s):

2021/155345

Publication restriction:

Nil

Judgment

1. HER HONOUR: I refer and rely upon my earlier judgment in Resort Living Group Pty Limited v Strategic Advisers Group LLC [2021] NSWSC 1418 dated 3 November 2021.

2. On 3 November 2021, I made the following orders:

1. The proceedings are adjourned to 16 November 2021 at 10:00am before me.

2. The plaintiff is to send by email a copy of this judgment to the first, second and third defendants and direct their attention to my orders.

3. The plaintiff is to provide an up to date affidavit setting out its claim for damages on the next hearing date.

3. On 4 November 2020, the first and second defendant’s filed a document entitled “reply” which is more accurately described as an amended defence. It raises triable issues.

4. At [5] to [8] it pleads:

“5.   On August 6, 2021, the transaction was officially cancelled by ING Bank, one of the two banks involved.

a.    On August 10, Defendant provided Plaintiff with the official bank communication copy and, as per the Deed of Agreement, a notice of refund of the fee of Euro 110,000.00. A failure by the third parties or the arising of situations beyond Defendant’s control would lead to the refund of said fee. Defendant directed Plaintiff to the pertinent sections of the Deed of Agreement which deal with the acceptance of commercial risk due to causes outside the control of Defendant (e.g. worldwide Covid pandemic, change in market conditions, non-performance by the banks and other third parties).

b.    Plaintiff immediately accepted Defendant’s notice of refund and instructed Defendant to wire the money to his account in Australia.

c.    Defendant, however, is still awaiting to receive from Plaintiff further requested details to carry out the refund accordingly.

6.    The Court noted in its decision that “While there is a heading Assignment and termination’ there is no clause under that heading which refers to termination, nor is there a clause dealing with the circumstances where the Deed of Agreement can be terminated, the Deed of Agreement does refer to a “Notice of Termination”. In fact, such a clause referring to termination, and dealing with the circumstances related to it, was an integral part of the original Word document version of the Deed of Agreement shared with Plaintiff. The signed and scanned copy as returned to Defendant by Plaintiff on July 28, 2020 curiously does not include the termination clause in question. Defendant has come to the realization that the original deed of Agreement was manipulated or [tampered] with only after reading the Court’s decision to the effect of the termination clause absence.

7.    Plaintiff maliciously failed to disclose to the Court his awareness and knowledge that the transaction delays that led to its eventual cancelation were due to the worldwide Covid pandemic. In fact, Defendant formally asked Plaintiff in at least three written communications on December 21, 2020, February 19 and again on March 14, 2021 if he wished for Defendant to cancel the transaction because of the pandemic related delays and have the Euro 110,000 fee promptly refunded. However, Plaintiff asked for Defendant to carry on and do the best possible on each and every occasion.

8.    Plaintiff went as far as to suggest and propose to Defendant to have the issuing bank ING forward the Standby Letter of Credit to one of his own banks in Australia. Defendant agreed and arranged for the issuing bank to do just that. However, after several weeks Plaintiff stated he could not meet the requirements to receive the financial instrument at his bank. This fact represents another malicious omission by Plaintiff.”

5. On 4 November 2021, the plaintiff filed further submissions an affidavit as to the status of the first defendant.

6. As there are disputed facts and circumstances that can only be resolved at trial, it is not appropriate to enter summary judgment. However, I have ordered the first and second defendant to file affidavits on or before 30 November 2021 in support of the allegations contained in their amended defence.

7. It also is not appropriate to assess damages against Kumar Solutions Management (the third defendant) as it does not appear to be a legal entity.

The Court orders:

1. The First and Second Defendants are to file affidavits in support of their amended defence within 14 days (30 November 2021).

2. The matter is listed on 2 December 2021 at 9am before the Registrar.

3. The Plaintiff’s notice of motion dated 29 July 2021 seeking summary judgment is dismissed.

4. The Plaintiff’s application to strike out the First and Second Defendant’s defence for want of due despatch is stood over to 2 December 2021 at 9am before the Registrar.

5. The Defendant’s notice of motion dated ­­­­30 June 2021 seeking dismissal is stood over to the Registrar on 9am on 2 December 2021.

6. I decline to assess damages in favour of the Plaintiff as against the Third Defendant as the Third Defendant does not appear to be a legal entity.

7. The court is to forward a copy of this judgment to the parties by email.

8. Costs of today are reserved.

The Court notes:

1. Mr David Hawkins was granted leave to appear for the Plaintiff only in the applications before me.

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Decision last updated: 16 November 2021