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[2026] NSWSC 630
Supreme Court of NSW
2026-06-03
Parker J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Harjai v Gogia [2026] NSWSC 630
Hearing dates: 29 May 2026
Date of orders: 29 May 2026
Decision date: 03 June 2026
Jurisdiction: Equity - Applications List
Before: Parker J
Decision: See [38]
Catchwords: PRACTICE AND PROCEDURE — strike out — failure to plead material facts — embarrassing pleading — limitation and res judicata — unpaid salary, superannuation and stock entitlement — transfer to District Court
Legislation Cited: Uniform Civil Procedure Rules 2005 rr 13.4, 14.28
Cases Cited: Fraser v Gogia [2015] NSWSC 1508
Harjai v Fraser [2016] NSWCA 2
Category: Consequential orders
Parties: Summons filed 14 September 2026
Jitender Harjai (Plaintiff)
Sunny Gogia (First Defendant)
ADIA Holdings Pty Limited (Second Defendant)
Notice of Motion filed 21 April 2026
Sunny Gogia (Applicant)
Jitender Harjai (Respondent)
Representation: Self-represented:
Jitender Harjai
Sunny Gogia
File Number(s): 2025/352583
Publication restriction: Nil
The plaintiff, Mr Jitender Harjai, is a former business associate of the first defendant, Mr Sunny Gogia. The second defendant, Adia Holdings Pty Limited (“AHPL”), is a company which was controlled by Mr Gogia during the period of his business relationship with Mr Harjai, and apparently it still is controlled by Mr Gogia.
These proceedings were commenced by Mr Harjai in September last year. They were originally commenced by summons, but Mr Harjai has now, pursuant to directions from the Court, filed a statement of claim. The pleading currently before the Court is a document styled “Amended Statement of Claim”, filed in November last year. For simplicity, I will refer to it as the “statement of claim”.
None of the parties are represented by lawyers. Mr Gogia has filed a notice of appearance as a self-represented litigant, in which he purported also to appear on behalf of AHPL. That course was not permissible, as the Rules require, except in certain specified cases, that a company be represented in legal proceedings in this Court by a solicitor. It is not suggested that any of the exceptions apply in the present case. Even though the notice of appearance has been filed, the registry has (correctly) recorded AHPL as being unrepresented in these proceedings.
When I raised this matter with Mr Gogia at today’s hearing, he sought leave to represent AHPL for the purposes of these proceedings. I declined that leave, because I considered that it was undesirable for the company to be represented by an unqualified person.
Mr Gogia has filed a notice of motion in which he seeks to have Mr Harjai’s statement of claim struck out or, in the alternative, other interlocutory relief which I will describe in due course. The notice of motion purports to be signed by Mr Gogia as director of AHPL. Given what I have said about representation of AHPL in these proceedings, I have treated the notice of motion as an application on behalf of Mr Gogia only.
According to the allegations in the statement of claim, the business association between Mr Harjai and Mr Gogia relevantly began in 2008. At this time, Mr Gogia appears to have controlled another company, Gogia Holdings Pty Limited (“GHPL”). Mr Harjai alleges that from 2008 onward he worked with Mr Gogia, or GHPL, on the understanding that he would be remunerated by means of “salary, superannuation, and a profit share and stock entitlement”.
On 30 May 2011, AHPL was incorporated, apparently at the instance of Mr Gogia. Mr Harjai was, it seems, shown on ASIC filings to have been a director on incorporation but later to have resigned that office. Mr Harjai alleges that he never agreed to become a director and never acted as such (and therefore did not resign either). He claims that he did not become aware of what was shown in the ASIC filings until last year.
According to Mr Harjai, Mr Gogia incorporated AHPL as part of a scheme to defraud the creditors of GHPL. He further alleges that an application to wind GHPL up was filed on 14 July 2011, only about six weeks after AHPL was incorporated. There seems to be no dispute that GHPL was wound up, although the statement of claim does not identify the date on which that occurred.
Mr Harjai alleges that he continued his business association with Mr Gogia, despite the winding up of GHPL, until 2013. In that year he claims to have entered into an agreement with Mr Gogia under which he was to become the owner of a collection of leather jackets which formed part of the stock of a shop at Campbelltown. The statement of claim does not contain any detail of what payments, if any, were to be made, but it does assert that Mr Gogia or AHPL or both of them failed to deliver the promised stock.
It seems that the parties fell out in 2014. In that year proceedings were brought in this Court to determine the ownership of the stock. The plaintiff in those proceedings was the receiver of two companies who, I assume, claimed ownership through Mr Gogia or AHPL. Mr Gogia and AHPL were joined as the first and second defendants. Mr Harjai was joined as the third defendant, apparently on the basis of a rival claim to ownership which, I assume, would have been founded upon the alleged agreement concerning the stock with Mr Gogia or AHPL.
The proceedings came before Ball J (as his Honour then was) who delivered his decision in October 2015. The receiver was successful: Fraser v Gogia [2015] NSWSC 1508. Mr Harjai was ordered to pay the costs of Mr Gogia and AHPL.
Mr Harjai appealed. In August 2016 the Court of Appeal delivered its decision: Harjai v Fraser [2016] NSWCA 2. The form of a declaration made by Ball J was slightly varied but the appeal was unsuccessful on the merits and was dismissed. There had been contested interlocutory applications in those proceedings; it seems that, as a result, Mr Harjai was ordered to pay at least some of Mr Gogia’s and AHPL’s costs of the appeal proceedings.
It seems that no immediate steps were taken by Mr Gogia and AHPL to enforce the costs order that they had obtained in 2015 and 2016. Then, last year, proceedings were commenced in this Court to have the costs assessed. The statement of claim does not contain any other detail about what is happening in these costs assessment proceedings.
As already mentioned, Mr Gogia’s notice of motion seeks an order that the statement of claim be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005. Alternatively, an order for summary dismissal is sought pursuant to r 13.4. A further alternative order is sought that Mr Harjai provide security for the defendants’ costs. It is unnecessary to go into that part of the application.
The grounds upon which the strike-out or summary dismassal relief is sought are as follows:
The claims arise from events between 2008 and 2013 and are statute-barred.
The matters have previously been litigated and determined.
The proceedings constitute an abuse of process.
The Plaintiff’s pleading discloses no reasonable cause of action.
This claim for declaratory relief is misconceived. The registration of AHPL as a company by ASIC brought it into existence as an incorporated company under the Corporations Act. That was a legally effective step which cannot be undone by this Court. Who the directors were is a separate question and a finding even that no director had been validly appointed would not affect the continuing legal existence of AHPL.
AHPL was required to maintain a register of company officers, and also to report the appointment and removal of its directors to ASIC. The latter step has no legal effect in itself; it is purely evidentiary. If Mr Harjai was falsely recorded as having been a director of AHPL, the proper remedy would be for an order rectifying the register of officers of AHPL so as to remove him (assuming, that is, that his name had been put in the register in the first place).
It might be possible also to obtain orders requiring AHPL to make correcting notifications to ASIC so ASIC could bring its records into line with the correct position. However, no such relief has been sought. If, as I suspect, no proper register of AHPL has been created, then Mr Harjai could probably have his name removed from ASIC’s record by administrative processes. But whether that is so, there is no occasion for this Court to take any action.
The Defendants knowingly made false representations and concealed facts with intent to deceive.
The Plaintiff relied on those representations and suffered loss including unpaid salary, superannuation, and the value of undelivered stock, reputational harm, and legal expenses.
The First Defendant owed fiduciary duties arising from joint business dealings and trust.
He breached those duties by misusing the Plaintiff’s identity and concealing material information.
The Plaintiff claims equitable compensation or an account of profits.
Evidently in framing the statement of claim, Mr Harjai sought to head off the suggestion that his cause of action, even if otherwise viable, was statute-barred. The statement of claim alleges that Mr Harjai only discovered last year “the fraudulent incorporation and forged documents”. Clearly this allegation is made in support of a contention that Mr Gogia fraudulently concealed the cause of action with the result that time did not run for the purposes of the Limitation Act until last year and the claim therefore is in time.
The statement of claim also seeks to head off any argument based on res judicata. It asserts that the “fraudulent incorporation and forged resignation” were not matters litigated or determined in the 2015 judgment of Ball J.
These contentions are unnecessary. The existence of a limitation bar to a cause of action does not need to be overcome by a plaintiff. It is a matter for the defendant to plead as a defence. Only at that point does it become necessary for a plaintiff seeking to rely upon fraudulent concealment to plead the necessary facts by way of reply. Similarly, res judicata is an affirmative defence and must be pleaded by the defendant before it needs to be the subject of a formal response from the plaintiff by way of reply.
It follows that, insofar as Mr Gogia seeks to have the proceedings dismissed on the grounds that they are statute-barred or have previously been litigated, his application is premature. The proper course would be to plead the defences and then, if no maintainable reply was advanced, to seek summary dismissal at that point. But that is not so for the application to have paragraphs of the statement of claim struck out on the basis that they disclose no reasonable cause of action or otherwise do not comply with the rules of pleading.
In my view, the paragraphs above which I have quoted are not properly pleaded. They do not identify the material facts but merely assert the existence of a cause of action or claim in a conclusory way. There are also questions about the allegation of reliance. It is not easy to see how Mr Harjai could have relied to his detriment and incurred losses as a result of a purported appointment of which, on his own case, he was not aware.
Similar problems exist to the extent that Mr Harjai’s case depends upon fraudulent conduct on the part of Mr Gogia. A claim in deceit would require a specific intent on the part of Mr Gogia (or AHPL) to induce Mr Harjai to act on the basis of the allegedly false representations. In my view, the relevant paragraphs are embarrassing and should be struck out.
From about 2008 to 2013, the Plaintiff worked with the First Defendant in business ventures; under oral agreements. (Gogia Holdings Pty Ltd-ACN: 039 624 796 [LIQUIDATED] & Adia Holdings Pty Ltd.- ACN 151 189 883)
Between 2008 and 2013, the Plaintiff contributed time, labour and funds on the mutual understanding that he would be remunerated by salary, superannuation, and a profit-share and stock entitlement.
Between 2011 to 2013 - $70,000 per annual salary and superannuation 2011 to 2013 payable to the Plaintiff were not paid; at the same time 2008 to 2011 superannuation under employment with Gogia Holdings Pty ltd [Liquidated] was also unpaid to the plaintiff.
On the face of it, these are allegations of breach of contract, but they do not plead the terms of the alleged arrangement. That is important because the first quoted paragraph, with its parenthetical reference to GHPL and AHPL, suggests that Mr Harjai may be alleging that his agreement was with those two parties. No such claim against GHPL can now be pursued, as it has been liquidated and no doubt deregistered.
It is also unclear whether Mr Harjai is alleging that he made the agreement in question with either Mr Gogia or AHPL, or one or both of them. He certainly could not have made an agreement with AHPL in 2008 because the company did not then exist.
Nor is there sufficient identification in the pleading to sustain the allegation that $70,000 in annual salary and superannuation is outstanding. Mr Harjai has not identified in the statement of claim the terms which allegedly applied to his remuneration. The vague statement in the second quoted paragraph about “salary, superannuation and a profit-share and stock entitlement” only raises more questions than it answers. Again, in my opinion, the pleading is defective and embarrassing because of a failure to plead the material facts.
Again, any breach of this agreement presumably had taken place 12 years or so before the institution of these proceedings. Furthermore, the claim clearly arises out of the circumstances that are the subject of this decision by Ball J in 2015. But for reasons which I have given, the fact that there may be a limitation defence or res judicata defence does not mean that the claim should be summarily dismissed.
As propounded in the prayers for relief in the statement of claim this is a viable claim, but again, the pleading is inadequate because it does not specify the material facts. Mr Harjai alleges:
The 2013 Stock Agreement was binding.
The Defendants failed to deliver the stock and breached the agreement.
The Plaintiff claims damage or value in lieu.
The Defendants were unjustly enriched by retaining the benefits of the Plaintiff’s labour and contributions without payment.
That deals with the substantive claims for relief in the statement of claim. I should mention that the statement of claim refers to the costs assessment proceedings, apparently on the basis that the allegedly fraudulent acts of the defendants, together with what is described as a “misuse of the costs assessment process”, is some sort of defence to the costs assessment claim. But no relevant claim appears in the prayers of relief in the statement of claim.
It seems to me that if Mr Harjai has any complaint of substance to make about the bringing of the costs assessment proceedings it must be raised in the costs assessment application. It is not a matter for pleading in these proceedings.
For these reasons I conclude that [1] of the prayers for relief in the statement of claim should be struck out. The other prayers for relief should remain, but the pleadings and particulars section (apart from [1]-[3] which are purely formal and introductory) should be struck out in its entirety.
Ordinarily I would then consider whether Mr Harjai should have leave to replead, or whether there should be directions to allow Mr Harjai an opportunity to seek leave to replead the struck-out parts of his statement of claim in accordance with the provisions of the Rules. But the remaining claims in the proceedings are purely monetary and, to the extent that they rely upon equitable compensation, would nevertheless fall within the jurisdiction of the District Court. In the statement of claim, Mr Harjai states that the value of the claim is $780,000. I make no comment on the plausibility of that figure, but even if a claim of that order is realistic, it would still be below the District Court’s jurisdictional threshold.
Accordingly, I will transfer the proceedings to the District Court in their current struck-out state, and it will be a matter for that Court to decide whether, if an application is made to replead, it should be permitted.
The orders of the Court on the First Defendant’s Notice of Motion filed 21 April 2026 are:
Order that [1] of the prayers for relief and [4]-[33] of the pleadings and particulars in the Plaintiff’s Amended Statement of Claim filed 6 November 2025 be struck out.
Order that the proceedings be transferred to the District Court of New South Wales.
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Harjai
Gogia