Visvalingam Pty Ltd v Vitarag Pty Ltd [2021] NSWDC 364

District Court New South Wales

Medium Neutral Citation: Visvalingam Pty Ltd v Vitarag Pty Ltd [2021] NSWDC 364 Hearing dates: 16 and 17 June 2021 Date of orders: 5 July 2021 Decision date: 05 July 2021 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the plaintiff against the first defendant in the sum of $175,546.91. (2) First defendant to pay the plaintiff's costs. (3) Liberty to either party to apply in respect of order (2) by email to my associate within seven days. Catchwords: LOAN – moneys advanced – not repaid – identity of borrower Legislation Cited: Civil Procedure Act 2005, s 100 Cases Cited: Newell; Muriniti v De Costi [2018] NSWCA 49 Category: Principal judgment Parties: Visvalingam Pty Ltd (plaintiff) Vitarag Pty Ltd (first defendant) Ashish Nanubhai Patel (second defendant) Representation: Counsel: Mr D S Weinberger (plaintiff) Mr M F Newton (first defendant)

Solicitors: Chedid Storey Legal (plaintiff) Gokani & Associates Legal (first defendant) File Number(s): 2018/47055 Publication restriction: None

Judgment

Introduction 1. Visvalingam Pty Ltd sued Vitarag Pty Ltd and Ashish Patel on an unpaid loan dating from 2008. Mr Ashish Patel did not file a defence and default judgment in a liquidated sum has been given against him. This judgment concerns the claim by Visvalingam against Vitarag.

Current issues 1. Visvalingam is the current trustee of the Savi3 Superannuation Fund ("the Fund"), which is the fund which provided the loan funds. Visvalingam is also the assignee of that debt arising from the loan. No issue was raised about Visvalingam's entitlement to sue for the debt. Nor was it disputed that the loan funds were provided by the former trustees of the Fund in the sum of $94,000. [1] 2. Nor was any issue raised about the interest rate applicable. 3. The only issue raised was the identity of the borrower, or, as Vitarag submitted: "The dispositive factual issue in this case is whether the Court can find, as a fact, that in 2008, it was the first defendant who undertook an obligation to repay the $94,000 to the former trustees of the Fund". [2] 1. The first defendant did not attempt to identify the correct borrower. It referred to evidence which might have pointed to Mr Nanubhai Patel, the father of Mr Ashish Patel, but expressly refrained from submitting that he was the borrower. 2. The pleadings indicated an issue about the trusteeship of Vitarag. The original defence denied that Vitarag was the trustee of the Kailash Trust ("the Trust"), [3] and the subsequent amended defence "does not admit" that Vitarag was the trustee for Kailash Trust. [4] But no evidence to dispute the contrary assertions in the letters of confirmation, to which I will come, was proffered, and no submissions were made to the contrary of Vitarag's trusteeship. 3. Without intending any disrespect and as the parties have done, for clarity and convenience I will refer to Mr Nanubhai Patel as "Nanu", Mr Ashish Patel as "Ashish", and Mr Selva Nithan Thirunavukarasu, the director of the plaintiff, as "Nithan".