Plaintiff v Defendant

Plaintiff v Defendant - [2010] VSC 25 - VSC 2010 case summary — Zoe

[65]

23 The relevant events commenced in late 2006 with the planning for Mr Kakavas' honeymoon. Mr Kakavas' evidence was that he left the arrangements to his wife as "it was her time and it was special for her so whatever she wanted, I did". She, apparently, wanted to visit the Bahamas and to stay at the Resort. When Mrs Kakavas was unable to make a reservation, Mr Kakavas suggested that his wife contact Mit Supakul, the Senior Vice President of International Marketing at the Bellagio Casino in Las Vegas for his assistance. It appears that Mr Supakul was able to arrange the accommodation with the assistance of Jorge Tise from the Mandalay Bay Casino in Las Vegas who contacted Mr Kirk. Mr Kirk learnt through Mr Tise that Mr Kakavas was a big player in Las Vegas who was coming to the Bahamas on his honeymoon. Mr Kirk was also told by Mr Tise that Mr Kakavas probably would not gamble. Criticism was made of the Casino for not calling Mr Kirk or Mr Tise as witnesses. For Mr Kakavas it was submitted that as a result of Mr Kirk and Mr Tise not giving evidence, Mr Kakavas "was unable to test the veracity of the evidence as to what the Casino knew about Mr Kakavas prior to him arriving at the Casino". I draw no adverse inference from either of these people not giving evidence. It was not part of Mr Kakavas' case that Mr Tise did tell, or that it could reasonably be expected that Mr Tise would have told, Mr Kirk more about him than the fact that he was a high roller, that he was coming to the Bahamas on his honeymoon and probably would not gamble. Furthermore, it is entirely probable that nothing more was passed onto Mr Kirk as the case for Mr Kakavas was that his wife chose the location because she wanted to honeymoon there, that he had left her to make all the arrangements and that he had not intended to gamble there. It was also not part of Mr Kakavas' case that Mr Tise would have known about his condition and would have been expected to pass on that information to Mr Kirk.

[77]

MR ANDERSON: What did he say to you and what did you say to him as best you can recall?

MR KAKAVAS: --- Your Honour, I thanked Mr Colebrook for organising the accommodation for us. Mr Colebrook was extremely professional, he welcomed me to the Bahamas. He enquired to whether or not I was going to gamble whilst I was in the Bahamas. I informed Mr Colebrook that I didn't have any intention of gambling, I didn't have any money to gamble with. I informed Mr Colebrook that I had outstanding markers at other casinos. I informed Mr Colebrook, Your Honour, that I had banned myself from casinos in Australia because I didn't want to be too easily tempted to gamble ...

...

I told Mr Colebrook I was there for my honeymoon, I told Mr Colebrook that I had no intention of gambling, I told Mr Colebrook that I had no money to gamble with. I told Mr Colebrook that I had outstanding markers from other casinos, I told Mr Colebrook I was excluded from other casinos in Australia because I didn't want to be too tempted to gamble...

MR ANDERSON: What did Mr Colebrook say to you, in return?

MR KAKAVAS: --- In return, Your Honour, Mr Colebrook said to me that the casino was aware of who I was. Mr Colebrook said to me that the casino was aware of the amounts I was wagering and losing in Las Vegas, Mr Colebrook said to me, because of my background, credit could be arranged. Mr Colebrook said to me that up to $1 million worth of credit could be arranged. Mr Colebrook said to me that the casino was aware that I had already in excess of US$5 million in outstanding markers at other casinos, they are the sort of things that Mr Colebrook said to me.

MR ANDERSON: Did Mr Colebrook speak to you about gaming at the Atlantis Casino?

MR KAKAVAS: --- Mr Colebrook did ask me if I wanted to gamble. I said to Mr Colebrook I didn't have any money to gamble and I had no intention of gambling and I was on my honeymoon and Mr Colebrook said to me he could organise a credit facility of up to $1 million.

MR ANDERSON: What then happened after he said that to you?

MR KAKAVAS: --- After he said that, I said to him that - not to speak about any gambling related activities in front of my wife or any credit application in front of my wife...

...

MR ANDERSON: Why did you say that?

MR KAKAVAS: --- Because I knew my wife was about 15 minutes behind me. I had gone to the casino just before - I went to the casino prior to my wife arriving there and I never thought that I would find that type of warm reception, so to speak, so I was taken by surprise and I asked Mr Colebrook not to say anything to my wife, because obviously I didn't want my wife to know I was gambling.

MR ANDERSON: What else did you discuss or did Mr Colebrook discuss with you during this conversation you've described to Her Honour?

MR KAKAVAS: --- A couple of other casino related matters, Your Honour. The casino had - off memory they had a limit of about $20,000 that you could bet. I said to Mr Colebrook that if they were to give me the credit that I requested or offered ...

So he said to me that - I asked him if the minimum bet could be increased, Your Honour from 20 or $25,000, I can't be precise, to $50,000, I can be precise about that and he, Mr Colebrook said to me he would speak to John Kirk and organise that and he also said to me that RFB, which is room, food and beverages, could be made available to me and a 10 per cent rebate on my loss would also apply. If I lost $1 million, for example, being the credit facility, I would get a discount of about $100,000.

MR ANDERSON: In relation to the food and beverages, what did he say would apply?

MR KAKAVAS: --- They were all complimentary.

[158]

The result of these authorities appears, therefore, to be that money lent abroad in order to take part in gaming which is lawful abroad is recoverable in this country.

Mr Hawser, for the defendant, sought to distinguish the present case on the ground that the loan and the gaming with which we are presently concerned took place in this country and so was subject to the provisions of the Gaming Acts, 1710 and 1835, which could have no extra-territorial effect upon transactions abroad. But it is difficult to see any logical distinction in principle between a loan abroad for gaming lawful abroad and a loan here for gaming which is now lawful here. No security was given in the present case, so the question whether the giving of a security invalidates a loan which would otherwise be good does not arise.

There remains for consideration the decision of the Divisional Court in Carlton Hall Club Ltd v Laurence ... The judgment of Shearman J. appears to proceed on the basis that the gaming was lawful. He based his decision on the observations of the majority in Moulis v. Owen and concluded with these words: "the curious position, therefore, arises that though the decisions on foreign gaming should logically apply to legal games in this country, the better authority is that the consideration cannot be sued on, because it is avoided under the [1710 Act]. The result is not a very satisfactory one but we are bound to follow the decision in Moulis v. Owen."

But, as we have indicated, the actual decisions upon claims for money lent for lawful gaming abroad - leaving out any case where any securities were given - are to the effect that such loans are recoverable. The question whether these authorities correctly interpret and apply the statutes with regard to either sort of loan may be a matter for consideration elsewhere. Whether in any event it is in the public interest that either sort of loan should be recoverable might be a matter for consideration by Parliament. But, as the law stands, it would seem that, if the true nature of the transaction in the present case were that the plaintiffs had advanced money to the defendant for the purpose of lawful gaming, the plaintiffs would have been entitled to succeed (references omitted).[58]

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