Resort Living Group Pty Ltd v Strategic Advisers Group LLC

[2021] NSWSC 1622

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Resort Living Group Pty Ltd v Strategic Advisers Group LLC [2021] NSWSC 1622

Hearing dates:

9 December 2021

Date of orders:

9 December 2021

Decision date:

09 December 2021

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

1.   The first and second defendants' notices of motion filed 30 June 2021 be dismissed with costs.

2.   That the document entitled Reply dated November 14th, 2021 filed by the first and second defendants be struck out.

3.   That the plaintiff have leave to apply for default judgment against the first and second defendants.

4.   That the plaintiff's notice of motion filed 29 July 2021 be otherwise dismissed.

Catchwords:

PRACTICE AND PROCEDURE – no question of principle

Cases Cited:

Resort Living Group Pty Ltd v Strategic Advisers Group LLC [2021] NSWSC 1418

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

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
D Hawkins (Director of Plaintiff)
No Appearance (Defendants)

File Number(s):

2021/155345

EX TEMPORE Judgment

(Revised from transcript)

1. Before the Court is the balance of two notices of motion, one filed on 30 June 2021 in which the first and second defendants, being Strategic Advisers Group LLC (“Strategic Advisers”) and Sebastian Saviano, ask the Court to dismiss the statement of claim on the basis that the Court lacks jurisdiction. The other notice of motion was filed on 29 July 2021 by the plaintiff, Resort Living Group Limited (“Resort Living”) and seeks an order that the first and second defendants' defences be struck out as disclosing no defence to the claim made by the plaintiff.

2. The history of the matter and the nature of the claim sought and the relationship between the parties is set out in the judgment of Harrison AsJ in Resort Living Group Pty Ltd v Strategic Advisers Group LLC [2021] NSWSC 1418 as supplemented by her Honour's judgment in Resort Living Group Pty Ltd v Strategic Advisers Group LLC (No 2) [2021] NSWSC 1473.

3. In the first judgment, her Honour addressed contentions that were raised in the defence of the first and second defendants which were to the effect that the Court lacked jurisdiction, either by reason of a lack of a territorial nexus or by the terms of an arbitration agreement included in the agreement between Resort Living and Strategic Advisers which is the subject of the claim. Her Honour concluded in that judgment by stating as follows at [104] and [105]:

“While the first and second defendants have not appeared at the hearings on 6 September 2021 and 24 September 2021 despite being notified of their occurrence, to achieve justice, and in order to afford the defendants procedural fairness, it is my view that they should be given one last chance to argue their defences in court.

In order to give them the chance to do so, the plaintiff is to send a copy of this judgment to the first and second defendants and if they do not appear and litigate their defence, save exceptional circumstances, I will strike out their defence and enter judgment against them. I will also assess damages against the third defendant on this date. The plaintiff is to provide an up to date affidavit setting out its claim for damages in advance of the next hearing date."

4. The reference to the third defendant is an entity described in the statement of claim as "Solutions Management" against whom a default judgment had been entered.

5. Subsequent to that judgment the first and second defendants filed a document entitled "Reply". It was treated as a defence. The document adverted to an intention to appeal her Honour's judgment insofar as her Honour rejected the first and second defendants' claim that this Court did not have jurisdiction to determine the matter. To date no such appeal has been filed. The document also raised a substantive defence to the claim under the agreement by the plaintiff which is unnecessary to describe.

6. The two notices of motion came back before her Honour on 16 November 2021 and were the subject of the second judgment noted above. Her Honour concluded that parts of the document entitled Reply raised a triable issue and accordingly dismissed so much of the application made by Resort Living for summary judgment. Her Honour otherwise adjourned Resort Living's application to strike out the defence for want of due despatch as well as the defendants' motion seeking dismissal on the basis of jurisdiction to the Registrar's List on 2 December 2021. Her Honour made orders requiring the first and second defendants to file affidavits in support of the matters raised in their document entitled “Reply”. Her Honour declined to assess damages in favour of the plaintiff as against the third defendant, noting that it did not appear to be a legal entity.

7. No affidavits were filed by the first and second defendants in accordance with her Honour's directions. The failure to do so must be understood in a context where the first and second defendants have been notified of the outcome of these various applications, had raised, but lost, a contention that the Court did not have jurisdiction and signalled an intention to appeal, but did not do so. Thus, the current position appears to be that, even though they have raised a defence, the first and second defendants do not want to pursue it. It is in those circumstances that the matter comes before the Court today.

8. To the extent that before the Court today is what is left of the first and second defendants' notices of motion seeking that the proceedings be struck out for a lack of jurisdiction, I can see no basis for ordering other than that the notice of motion be dismissed. That matter has been resolved against the first and second defendants by her Honour's first judgment. I am not sitting on appeal from her Honour. There is no basis for me to go behind her Honour's determination.

9. As for Resort Living’s application, at some point its various applications have become an application for the entry of judgment. Today I raised with the director of the plaintiff, who was granted leave to appear on this application, a concern that arose out of an affidavit he filed as to whether the first defendant has been deregistered. From the bar table he explained that what had occurred in the District of Columbia was a process by which the same corporate entity simply applied for the renewal of its corporate status and was assigned a different registration number so that the entity that entered into the agreement the subject of these proceedings still exists. I indicated that should an application for default judgment be filed that will need to be addressed by evidence.

10. I also queried the claim against the second defendant in that, at least on my reading of the materials, he did not appear to be a party to the agreement. That said, it is not for the Court to argue the points that could be raised for the first and second defendants in circumstances where they fought and lost the contention about jurisdiction, indicated an intention to appeal, but did not do so, and now appear to be seeking to sit on their hands. In these circumstances I will simply proceed to consider the application to strike out the defence for want of due despatch and leave it to the plaintiff to take the course of action it wishes to from that point.

11. Given the history of the proceedings that I have outlined and the evident patience shown by the Associate Justice in affording the first and second defendants every possible opportunity to raise and pursue a defence in this Court, and the attitude they have taken to jurisdiction that I noted earlier, it is self-evident to me that we are now in a position whereby the first and second defendants are simply not willing to pursue a substantive defence in this Court. In those circumstances, where there has been a non-compliance with her Honour's orders and that non-compliance occurs in a context of two defendants who clearly do not want to pursue a substantive defence, then I am satisfied that it is appropriate that their defence be struck out.

12. Accordingly I will make the following orders:

1. The first and second defendants' notices of motion filed 30 June 2021 be dismissed with costs.

2. That the document entitled Reply dated November 14th, 2021 filed by the first and second defendants be struck out.

3. That the plaintiff have leave to apply for default judgment against the first and second defendants.

4. That the plaintiff's notice of motion filed 29 July 2021 be otherwise dismissed.

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Amendments

15 December 2021 - Coversheet amended to remove solicitor field

Decision last updated: 15 December 2021