[2021] NSWSC 1473

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

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

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. (1)
  The proceedings are adjourned to 16 November 2021 at 10:00am before me.
2. (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. (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 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.
1. (1)
  The First and Second Defendants are to file affidavits in support of their amended defence within 14 days (30 November 2021).
2. (2)
  The matter is listed on 2 December 2021 at 9am before the Registrar.
3. (3)
  The Plaintiff’s notice of motion dated 29 July 2021 seeking summary judgment is dismissed.
4. (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. (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. (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. (7)
  The court is to forward a copy of this judgment to the parties by email.
8. (8)
  Costs of today are reserved.
9. (1)
  Mr David Hawkins was granted leave to appear for the Plaintiff only in the applications before me.