Big Sky Capital Pty Ltd atf the Montana Investment Trust v TEB Group Management Pty Ltd

Parties: Big Sky Capital Pty Ltd as trustee for the Montana Investment Trust (Plaintiff/Cross-Defendant)
TEB Group Management Pty Ltd (First Defendant/Cross-Claimant)
David Cosmo Schuh (Second Defendant)

Representation: Counsel:
G Gee (Plaintiff/Cross-Defendant)
Solicitors:
McCullough Robertson Lawyers (Plaintiff/Cross-Defendant)

File Number(s): 2024/00406041

JUDGMENT EX TEMPORE (REVISED)

1. The Plaintiff in these proceedings filed a Summons against only the First Defendant on 1 November 2024, together with a Commercial List Statement. A Commercial List Response was filed by the First Defendant on 21 February 2025.

2. An Amended Summons and Amended Commercial List Statement were filed by the Plaintiff on 2 July 2025 pursuant to which the Second Defendant, David Cosmo Schuh, was joined. Mr Schuh is the sole director of the First Defendant.

3. On 21 February 2025, the First Defendant filed a Cross‑Summons seeking certain relief supported by a Commercial List Cross‑Claim Statement. The matter was set down for hearing commencing today for three days, no doubt to accommodate the time that would be taken up by the issues raised in the Cross‑Claim, which were significantly more complex than those upon which the Plaintiff proceeds, which is a debt claim.

4. The Plaintiff’s claim is straightforward. It claims in its Amended Commercial List Statement that it transferred 70 fully‑paid ordinary shares in Clearwater Portfolio Management Pty Ltd to the First Defendant pursuant to a document styled “Share Sale Deed” dated 2 August 2024, and that the First Defendant remains indebted to it for part of the sale price under that agreement. It also contends that it loaned, pursuant to an oral loan agreement, the sum of $1.1 million to the Second Defendant by two payments made to him respectively on or about 11 July 2024 and 30 July 2024. It seeks the repayment of those sums as well.

5. When the matter was called on for hearing by my Associate at 10 am this morning, there was no appearance by the Second Defendant. I directed my Tipstaff to call the matter outside the Court. He informed the Court that there was no appearance by the Second Defendant despite the matter being called three times. There is accordingly no question that there has been no appearance today by the Second Defendant.

6. As regards the First Defendant, there was an appearance at the Bar table at 10 am this morning by Mr Peter Hudson, who is the principal of the law practice known as Hudson Law Pty Ltd. Mr Hudson sought leave to file in Court a Notice of Motion and an affidavit in support. I have already dealt with that Notice of Motion in a judgment delivered earlier today. In consequence of that motion, Mr Hudson was given leave to withdraw from these proceedings, leaving the First Defendant unrepresented. No one has since sought to appear for the First Defendant. It is worth noting that Mr Schuh corresponded by email with the Court last night at 9.06 pm where, in his stated capacity as the sole director of the First Defendant, he informed the Court that “TEB does not wish to burden [Mr Hudson] with the possibility of having to further represent it in these proceeds [sic]”, and attached a document styled a “Notice of Removal of Solicitor”.

7. If that were not enough to confirm that Mr Schuh was aware that the proceedings were before the Court today, Mr Gee of Counsel, who appears for the Plaintiff, tendered three documents today which amplify that matter. The first was an email sent by Mr Gee’s instructing solicitors to Mr Schuh on 6 February 2026 which attached, by way of service, the orders made by this Court on 12 December 2025 which fixed a hearing date for 2 March 2026 with a three-day estimate and made the usual order for hearing. Thereafter, on 25 February 2026, McCullough Robertson sent a further email to Mr Schuh which attached a letter of that date. In that letter, McCullough Robertson said, amongst other things:

“As you would be aware, including in your capacity as a director of TEB and from our previous correspondence with you as the second defendant, the Proceedings are listed for a 3-day hearing commencing on 2 March 2026. Our client is continuing its preparation for the hearing on the basis that the matter will be heard on 2 March 2026. You should be prepared for the matter to be heard on 2 March 2026.”

8. The letter further goes on to state, under a heading titled “Claim regarding payment of Loans”, inter alia the following:

“In its Amended Commercial List Statement filed on 2 July 2025, our client seeks an order that TEB pay $3,850,000 to Big Sky, representing the outstanding balance under the Share Sale Deed dated 2 August 2024 (S****hare S****ale Deed). In the alternative, Big Sky claims that $2,750,000 remains outstanding under the Share Sale Deed and that you remain indebted to Big Sky in the amount of $1,100,000 in respect of the repayment of loans advanced to you on or around 11 July 2024 and 30 July 2024 by Big Sky (Loans).

For the avoidance of any doubt, we confirm that at the hearing on 2 March 2026, our client intends to advance as its primary case that the loans remain unpaid. Our client will be seeking judgment against you in the amount of $1,100,000, plus interest at court rates and costs.”

9. More recently still, on 1 March 2026 at 1.16 pm, McCullough Robertson sent Mr Schuh another letter which again, in its very first paragraph, referred to the upcoming hearing of this matter at 10 am today.

10. It also notes, in the antepenultimate paragraph, the following:

“To be abundantly clear, if there is any application that you wish to make, including if you consider that the matter has settled and you wish to make an application in relation to any purported settlement, you should attend the Supreme Court of New South Wales Court 11D Queens Square Sydney – Law Courts Building on Monday, 2 March 2026 at 10.00am to make that application. Failure to do so may result in the matter being determined in your absence.”

11. As I have already stated, despite that correspondence, there has been no appearance by Mr Schuh today.

12. The Uniform Civil Procedure Rules 2005 (NSW) (UCPR) makes specific provision for circumstances such as the present. UCPR r 29.7 is entitled “Procedure to be followed if party is absent” and applies when a trial is called on: r 29.7(1). That occurred this morning at 10 am.

13. UCPR r 29.7(3) provides as follows:

(3) If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of—

(a) the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and

(b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff’s claim or costs.

14. I am satisfied that this rule applies to the present circumstances. I am also satisfied that r 29.7(3) is enlivened as the Plaintiff’s claim is for a debt as opposed to damages (although not styled as such in the ‘pleading’). In light of this rule, I may give judgment without proceeding to trial. I propose to do so.

15. In order to enter judgment, I must be satisfied on the evidence that there is an amount due to the Plaintiff. Mr Gee has read the affidavit of Clayton Larcombe, affirmed on 22 April 2025. Mr Larcombe, in paragraph 1 of that affidavit, describes himself as the sole director and secretary of the Plaintiff, and he makes that affidavit in support of his company’s claims in the proceedings. I have read that affidavit.

16. In relation to the amount claimed by the Plaintiff against the First Defendant, Mr Gee refers particularly to paragraphs 21 to 25 of that affidavit, and also to paragraphs 34 and 35, which demonstrate that the Plaintiff has performed its obligations under the Share Sale Deed. The total consideration payable under that deed was $8,750,000. In paragraphs 53 and 54 of his affidavit, Mr Larcombe deposes that on 19 September 2024 the sum of $6,000,000 was paid to the Plaintiff’s account by the First Defendant. In paragraph 56 he deposes that, as at the date of the affidavit (22 April 2025), the Plaintiff has not received any further payment from the First Defendant.

17. In relation to the claim against the Second Defendant, I have been particularly referred to paragraphs 14 to 17 of that affidavit which concern an oral loan agreement made by the Plaintiff and Mr Schuh for $1 million on or about 11 July 2024, and paragraphs 18 to 20 which concern the second loan made to Mr Schuh in the amount of $100,000 on or about 29 July 2024.

18. Mr Gee has today read an updating affidavit from Mr Larcombe which I have given leave to file in Court. That affidavit states that in furtherance of paragraph 56 of his first affidavit, Mr Larcombe deposes, in his capacity as director of the Plaintiff, that the Plaintiff has not received any further payments from the First or Second Defendant since the $6,000,000 payment referred to in paragraph 54 of his first affidavit.

19. In those circumstances and pursuant to the abbreviated approach that is commended by UCPR r 29.7, I am satisfied that the Plaintiff is, first, entitled to judgment on a debt against the First Defendant in the amount of $2,750,000, and, secondly, entitled to judgment on a debt against the Second Defendant in the amount of $1,100,000.

20. Something further must be said in relation to the Cross-Claim. The Cross‑Claim sought payment of certain sums on account of breaches of warranty and other claims. In circumstances where there has been no appearance by the Cross-Claimant and, accordingly, no evidence read in support of that Cross-Claim, I raised with Mr Gee what his client wished to do in relation to that claim. Mr Gee made an application ore tenus for that Cross‑Claim to be struck out. I am satisfied in the circumstances of the non‑appearance of the Cross-Claimant that the Cross-Claim should be struck out.

Orders

21. Accordingly, I make the following orders:

22. The First Defendant is to pay the Plaintiff $2,750,000 together with pre-judgment interest in an amount to be a calculated in accordance with s 100 of the Civil Procedure Act 2005 (NSW).

23. The Second Defendant is to pay the Plaintiff $1,100,000 together with pre-judgment interest in an amount to be calculated in accordance with s 100 of the Civil Procedure Act 2005 (NSW).

24. The Cross-Summons and Commercial List Cross-Claim Statement filed on 21 February 2025 are struck out.

25. The First Defendant is to pay the Plaintiff’s costs of proceedings, subject to orders (6)–(10) below.

26. The Plaintiff is by 5pm on Thursday 5 March 2026 to inform Mr David Cosmo Schuh of the Orders the Court has made today.

27. Any application for a gross sum costs order against either or both of the Defendants be made by no later than 5pm Thursday 5 March 2026 by filing and serving submissions no longer than 3 pages, including any affidavit evidence in support of that application. Such submissions should also include any claim for interest and any evidence in support thereof.

28. The Plaintiff is to file and serve by email to the email address of Mr David Cosmo Schuh any application and submissions made in accordance with Order 6.

29. If Mr David Cosmo Schuh on behalf of the First Defendant and/or on his own behalf (insofar as an order is sought against him personally) wishes to respond to the Plaintiff’s application, he is to file and serve by no later than 5pm next Tuesday 10 March 2026 submissions no longer than 3 pages in length along with any affidavit evidence in support.

30. The Plaintiff is by 5pm on Thursday 12 March 2026 to file any submissions in reply to any submissions filed by Mr David Cosmo Schuh. Such submissions are to be of no more than 1 page in length.

31. Upon receipt of those submissions, the Court will determine the matter on the papers.

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