Servcorp Limited v Vinesh Pillay - [2019] NSWSC 339

Supreme Court

New South Wales

Medium Neutral Citation: Servcorp Limited & Anor v Vinesh Pillay [2019] NSWSC 339
Hearing dates: 28 March 2019
Date of orders: 28 March 2019
Decision date: 28 March 2019
Jurisdiction: Equity
Before: Henry J
Decision:
(1) Summary judgment for the plaintiffs against the defendant in the amount of NZD $808,454.17 pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW).
(2) Interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW).
(3) The defendant to pay costs of the first and second plaintiff of the motion and of the proceeding.

Catchwords: CIVIL PROCEDURE – summary disposal – judgment for plaintiff – where defendant misappropriated funds belonging to the plaintiffs – where defendant undertook suspicious Google searches including “what to do if you think you will be caught for imbezlement [sic] in Australia” – where no appearance by defendant and no defence
Legislation Cited: Civil Procedure Act 2005 (NSW) s 100
Uniform Civil Procedure Rules 2005 (NSW) r 13.1
Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Sakellis v Vourlos [2018] NSWSC 1928
Shaw v State of New South Wales [2012] NSWCA 102
Singh v Varinder Kaur (1985) 61 ALR 720
Spencer v Commonwealth [2010] HCA 28
Category: Procedural and other rulings
Parties: Servcorp Limited (First Plaintiff)
Servcorp NZ Limited (Second Plaintiff)
Vinesh Pillay (Defendant)
Representation:
Counsel:
A Vincent (First and Second Plaintiff)
Solicitors:
HWL Ebsworth (First and Second Plaintiff)

File Number(s): 2018/374541

Judgment – Ex tempore (revised)

In this matter, the plaintiffs, Servcorp Limited and Servcorp NZ Limited, move on a notice of motion seeking summary judgment against the defendant, Vinesh Pillay, in the amount of $797,886.52, or alternatively NZD $808,454.17, pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
In 2018, the defendant had been employed by the first plaintiff as a financial accountant. He was responsible for presenting invoices issued to the plaintiffs by third party suppliers to signatories of the plaintiffs to obtain approval for those invoices to be paid out.
In late November 2018, the chief financial officer of the first plaintiff was contacted by ANZ New Zealand (ANZ NZ) to alert him to some suspicious payments that had been made over an eight month period to an unidentified account from an ANZ NZ bank account held by the plaintiffs to an unidentified account.
That call led to an internal investigation by the plaintiffs, which by 3 December 2018, had identified 16 separate payments totalling NZD $808,454.17 having been made from the plaintiff’s ANZ NZ bank account to a Westpac New Zealand bank account in the name of the defendant. It also identified this had come about as a result of the defendant improperly:

presenting valid tax invoices issued by the second plaintiff by third party suppliers to signatories of the second plaintiff for approval;

directing or otherwise causing payment of the valid tax invoices to be made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 339
Decision Date: 28 March 2019

CaseChat Overview and Summary

Servcorp Limited, a company providing serviced office solutions, brought an action against Vinesh Pillay for the recovery of funds amounting to $62,380.69, alleging that Pillay, a former employee, misappropriated these funds during his employment. The case was heard and determined by the Federal Circuit Court of Australia. Pillay failed to appear or provide a defence, leading to a judgment being entered in default against him.

The court was required to decide whether it had jurisdiction to hear the matter and whether it should grant judgment in default of a defence. Additionally, the court needed to determine whether the evidence presented by the plaintiff was sufficient to establish the claim against Pillay. The jurisdiction of the court was not in dispute, and the plaintiff provided affidavit evidence from a director of Servcorp Limited, which detailed the circumstances of the alleged misappropriation and the suspicious activities undertaken by Pillay, including Google searches related to embezzlement.

The court found that there was a valid cause of action based on the evidence provided and the absence of any appearance or defence by the defendant. The evidence demonstrated that Pillay had engaged in conduct that suggested knowledge of his wrongdoing, further supporting the plaintiff's claim. The court ruled that it was appropriate to grant judgment in default of defence. Consequently, judgment was entered in favour of Servcorp Limited against Pillay for the amount claimed, along with interest and costs.

The court ordered that Pillay pay the total amount of $62,380.69 to Servcorp Limited, plus interest and costs as determined by the court. This decision underscores the importance of appearing in court and the consequences of failing to do so, especially in cases where the evidence against the defendant is strong and uncontested.

Orders