Supreme Court New South Wales Medium Neutral Citation: Stanwell Warwick v Anthony Gee [2013] NSWSC 294 Hearing dates: 28/03/2013 Decision date: 28 March 2013 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: Judgment for plaintiff against first defendant with costs; leave to discontinue against second defendant. Catchwords: PROCEDURE - application for judgment - no question of principle. Category: Procedural and other rulings Parties: Warwick Stanwell (First Plaintiff) Culars No. 159 Pty Ltd atf Stanwell Group Superfund (Second Plaintiff) Anthony Gee (First Defendant) AJG Capital Pty Limited (Second Defendant) Representation: Counsel: M A Izzo (Plaintiffs) No appearance (Defendants) Solicitors: Gilbert + Tobin Lawyers (Plaintiffs) No appearance (Defendants) File Number(s): 2012/393308 Judgment (ex tempore - revised 28 march 2013) 1HIS HONOUR: The plaintiff (Mr Stanwell), sued the first defendant (Mr Gee), to recover a loan of $1.65 million said to have been advanced by Mr Stanwell to Mr Gee in August 2010. 2When the matter was first before the Court on 8 March 2013, there was no appearance for Mr Gee (nor, for that matter, for his company, the second defendant). Both defendants were called outside court and did not appear. 3Pursuant to leave granted by the Court on 8 March 2013, Mr Stanwell now moves for judgment against Mr Gee. The second defendant is in administration and Mr Stanwell does not press his claim against it, at least today. 4Still dealing with formal matters, I am satisfied that Mr Stanwell's notice of motion filed on 19 March 2013, his affidavit in support sworn 18 March 2013, and the affidavit of service of the originating process sworn 14 March 2013, were all served on Mr Gee. The evidence of Mr Floro, the solicitor having conduct of the matter, is that he gave those documents, together with a letter, to his secretary for delivery to Mr Gee. He was informed that delivery had been effected. In support of that, he produced a print-out of a delivery record kept by the courier. That record shows that one item was delivered from Mr Stanwell's lawyers to Mr Gee on 20 March 2013 and that someone called "Tony" received the document and acknowledged it by signing on the electronic device used by the courier. 5I am satisfied, on the basis of that material, that Mr Gee was served with the notice of motion and supporting affidavits. I return to the substance of the claim. 6Mr Stanwell's case is that he was offered an opportunity to invest in a business conducted by Mr Gee. That required Mr Stanwell to carry out due diligence on the business and the companies standing behind it. Apparently, Mr Gee asked Mr Stanwell to provide a short term loan up to $1.65 million, pending the performance of that due diligence investigation and, of course, conditional on satisfaction with the outcome. 7Mr Stanwell did indeed advance a total of $1.65, by two separate payments. That appears clearly from an email exchange between Mr Stanwell and Mr Gee which became exhibit PX2 today. 8Mr Stanwell said that he was not satisfied with the outcome of his due diligence investigation, and accordingly asked for the sum of $1.65 million to be repaid. 9I am satisfied, on the evidence, (which includes the email exchange as to which I have referred) that numerous demands were made, and that Mr Gee has temporised from time to time in response to Mr Stanwell's request for payments. The result of all that is Mr Stanwell has not been repaid. 10Mr Stanwell also puts his case in an alternative way. That need not be considered because as I have said the evidence makes good the primary claim in debt. 11I am thus satisfied that Mr Stanwell is entitled to judgment against Mr Gee in the amount claimed together with interest. That has been quantified as a total of $1,995,341.70. The interest calculation is not up to date. But Mr Stanwell is content to have judgment in the amount that I have indicated. 12Accordingly I make the following orders: (1) Direct entry of judgment for the plaintiff against the first defendant, in the sum of $1,995,341.70. (2) Order the first defendant to pay the plaintiff's costs. (3) Direct that the exhibits be retained. [Counsel addressed.] 13As indicated in the reasons, it is at least likely that the claim will not be pressed against the second defendant. In circumstances where the second defendant must be aware, through its principal Mr Gee, of the proceedings and did not appear on 8 March, and in circumstances where Mr Gee was given notice of today's application, I think the simplest course is to grant the plaintiff leave to discontinue as against the second defendant on the basis that there be no order as to costs between them. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 April 2013