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[2025] NSWSC 798
General information, not legal advice.
Supreme Court of NSW
2025-07-21
Kunc J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: SNS Petro Pty Ltd v Goel [2025] NSWSC 798
Hearing dates: 10 June 2025
Decision date: 21 July 2025
Jurisdiction: Equity
Before: Kunc J
Decision: Judgment for Defendant/Cross-Claimant
Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — Plaintiffs after numerous defaults and delays over five years required to provide security for defendant’s costs of preparation for hearing — Security not provided — Plaintiffs’ claims dismissed and defendant’s cross-claim heard as undefended CONTRACTS — Breach of contract — Consequences of breach — Right to damages — No issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Category: Principal judgment
Parties: SNS Petro Pty Ltd (First Plaintiff)
Shobhit Saigal (Second Plaintiff)
Gaurav Goel (Defendant)
Representation: Counsel: D Smallbone (Plaintiffs)
E Keynes (Defendant)
Solicitors: Vaikom Law (Plaintiffs)
Madison Marcus (Defendant)
File Number(s): 2019/72345
Publication restriction: Nil
The parties to these proceedings are in dispute about their arrangements for the ownership, and entitlement to the profits, of a service station business. It should have been a relatively straightforward matter. It has not proven to be so.
The plaintiff/cross-defendants are SNS Petro Pty Ltd and Mr Shobhit Saigal. The defendant/cross-claimant is Mr Gaurav Goel.
These proceedings were commenced as long ago as 2019. The plaintiffs and their solicitors have conducted them in a manner that has been, to use the candid description of counsel who briefly appeared for them in the matter, “atrocious”. As a result of that conduct, the Court ultimately dismissed the plaintiffs’ claim and defence to Mr Goel’s cross-claim.
Even the significance of those dismissals appears to have been lost on the plaintiffs and their advisors, such that counsel who was belatedly briefed to appear on what had become an undefended hearing of the cross-claim was caught unawares. After an unsuccessful attempt to obtain an adjournment and revive the plaintiffs’ claims, that counsel, who apparently had not been fully informed about the procedural history, withdrew and the Court heard the cross-claim.
For the reasons set out in [91] below and following, there will be judgment for Mr Goel on his cross-claim against Mr Saigal in the sum of $248,113.61 together with pre-judgment interest. However, before coming to that, it will be necessary to explain in some detail how the plaintiffs’ claims and defences were brought to an end.
The proceedings were commenced by a summons filed on 6 March 2019.
On 15 March 2019, the plaintiffs were ordered to serve a commercial list statement by 29 March 2019. In an early sign of what was to come, they failed to do so. On 3 May 2019, the proceedings were dismissed with costs by Hammerschlag J (as his Honour then was).
The plaintiffs’ filed a motion in the Commercial List for the orders made on 3 May 2019 to be set aside. That was heard by Hammerschlag J on 17 May 2019. The defendant’s lawyers had gone off the record two weeks before. The matter was stood over for the defendant to obtain legal representation.
On 12 June 2019, the Court set aside the dismissal order made on 3 May 2019, and the plaintiffs were ordered to pay the defendant’s costs of the motion to set the dismissal aside.
The plaintiffs filed a commercial list statement on 26 June 2019. The defendant filed a commercial list response on 9 August 2019, and a cross-claim on 9 September 2019.
Orders were made on 20 September 2019 allowing the plaintiffs to request further and better particulars of the cross-claim by 27 September 2019, and file their defence to the cross-claim by 18 October 2019.
On 25 October 2019, the plaintiffs sought an adjournment because they were in default of the orders made on 20 September 2019. The extension of time to request better and further particulars and file the defence to the cross-claim was opposed by the defendant. Ball J (as his Honour then was) refused to grant the plaintiffs an adjournment. Orders were made for the plaintiffs to file a response to the cross-claim by 8 November 2019 and for the service of lay evidence in chief by 29 November 2019.
The defendant filed a notice of motion on 26 November 2019 seeking default judgment for unliquidated damages, because the plaintiffs had still not filed their defence to the cross-claim.
On 12 February 2020, the Court ordered the plaintiffs to file their defence to the cross-claim by 14 February 2020 and the plaintiffs were ordered to pay the defendants’ costs. The plaintiffs failed to comply with the Court’s order: their response to the cross-clam list statement was eventually filed on 25 February 2020.
On 22 May 2020, the defendant’s application for default judgement was dismissed and the plaintiffs were given until 19 June 2020 to serve their evidence in chief (which evidence was originally due by 29 November 2019).
On 25 June 2020, the time for filing of evidence in chief for the plaintiffs was extended until 3 July 2020.
On 10 July 2020, the time for filing of evidence in chief for the plaintiffs was extended until 20 July 2020 and a further order was made that any evidence served after that date could not be relied upon. An affidavit of Mr Saigal was filed on 17 July 2020.
On 15 December 2020, the matter was set down for a two day hearing to commence on 30 March 2021.
The plaintiffs failed to comply with the usual order for hearing despite prompting from the defendant. On 24 March 2021, the defendant filed a notice of motion to set aside a subpoena issued by the plaintiffs on 10 March 2021 and a notice to produce issued by the plaintiffs on 22 March 2021. Leave to file and serve a further affidavit was also sought. It was apparent that the parties were at odds as to the subpoena, notice to produce and the formulation of the court book.
On 26 March 2021, the hearing dates were vacated, the matter was removed from the Commercial List, and it was relisted for directions before the Equity Registrar in the General List.
On 8 June 2021, Registrar Walton listed the matter for directions before Ward CJ in Eq (as her Honour then was) due to the number of orders sought by both parties in motions they had filed.
On 22 June 2021, Ward CJ in Eq made orders for the filing of evidence with respect to the motions. Her Honour noted there was no appearance for the plaintiffs, and counsel for the defendant was instructed to notify the plaintiffs of the orders and advise them that an appearance was required for the next occasion.
On 6 July 2021, the parties appeared before Ward CJ in Eq and the plaintiffs requested an extension of time for the filing of another affidavit. The defendant drew the plaintiffs’ history of unexplained delays to the attention of the Court and requested a guillotine order. Her Honour granted an extension until 13 July 2021 and made an order that the plaintiff would not be permitted to rely on any further evidence without the leave of the Court. The two motions were set down for hearing.
On 8 October 2021, Rein J made orders by consent regarding the various subpoenas and notices to produce that were in issue. Orders were also made requiring the parties to exchange full particulars of their loss and damage by 5 November 2021, and leave was granted to the plaintiffs to file additional affidavits. The plaintiffs neither provided those particulars nor filed any additional evidence.
On 22 June 2022, the plaintiffs sent a proposed amended statement of claim to the defendant. It was not in the proper form and appears to be the document advanced again in February 2025. The plaintiffs did not raise the question of amendment again until September 2023.
On 29 August 2022, the Court ordered that a mediation take place before 7 November 2022. This date was extended more than once as a result of delays by the plaintiffs. The parties eventually attended a mediation on 27 July 2023, which was not successful.
On 11 September 2023, there was a directions hearing at which orders were made for the exchange of amended pleadings by 10 November 2023. There was again no appearance by the plaintiffs, who as a result were ordered to pay the defendant’s costs.
After prompting by the defendant, on 13 November 2023, the plaintiffs’ solicitor, Mr Vaikom Rajeev, emailed the defendant’s solicitor, asking for an extension of time to serve the amended pleadings. The proceedings were also sought to be stood over to allow for a further mediation. The matter was stood over until 29 November 2023, however no further communication was received by the defendant regarding a mediation.
On 29 November 2023, the Court made consent orders that the plaintiffs serve their proposed amended statement of claim by 3 December 2023. On 6 December 2023, the defendant sought to follow up the plaintiffs’ non-compliance with this order. No response was received.
The defendant sent further correspondence to the plaintiffs about the latter’s failure to comply with directions and to progress the matter. No replies were received to this correspondence.
On 5 February 2024, the defendant’s solicitors emailed the Equity Registrar with proposed minutes of order, including time to file a notice of motion seeking the dismissal of the plaintiffs’ summons. The plaintiffs’ solicitors then emailed the Equity Registrar advising that they consented to the other orders proposed but did not consent to an order to dismiss the summons.
On 6 February 2024, the Court ordered that the defendant had until 16 February 2024 to file a motion to amend their cross-claim and for the dismissal of the summons.
On 23 February 2024, the defendant filed a notice of motion seeking that the plaintiffs’ summons of 6 March 2019 be dismissed pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for want of prosecution. In the supporting affidavit of the defendant’s solicitor, Mr Daniel Ivers, sworn on 22 February 2024, Mr Ivers deposed that since 6 February 2024, the defendant had not received any communication from the plaintiffs.
On 4 March 2024, the Court ordered the plaintiffs to serve any evidence in response to the defendant’s motion filed 23 February 2024 by 15 March 2024, and the matter was listed in the Applications List before me on 5 April 2024.
The plaintiffs served no evidence. It required two follow up emails from the defendant before the plaintiffs indicated they would be filing evidence.
Because of the late service of the plaintiffs’ evidence, on 4 April 2024 the Court made orders vacating the listing on 5 April 2024, for the defendant to serve any evidence in reply by 5 April 2024, and setting the defendant’s motion down for final hearing on 12 April 2024. The plaintiffs’ evidence gave the reasons for the delay as the death of Mr Saigal’s father and stated that counsel had been briefed and the matter would now be conducted efficiently.
On 11 April 2024, the Court made consent orders vacating the listing on 12 April 2024, giving leave for the defendant to file and serve an amended statement of cross-claim by 12 April 2024, and dismissing the defendant’s notice of motion filed 23 February 2024, with the plaintiffs to pay the costs of the motion. The defendant’s right to bring a further motion in the event of further delays by the plaintiff was reserved. It is Mr Goel’s amended cross-claim that is the subject of these reasons.
The proceedings were next before the Equity Registrar on 17 April 2024 for directions. Yet again, the plaintiffs did not appear. Costs were reserved. The proceedings were stood over to 15 May 2024.
On 7 May 2024, the defendant inquired of the plaintiffs whether they would be filing a defence to the amended cross-claim. The plaintiffs replied they had briefed counsel. Orders were eventually made for the defence to be filed by 24 May 2024 with the proceedings relisted not on 15 May but on 29 May 2024. No defence was ever filed to the amended cross-claim.
On 29 May 2024, there was again no appearance for the plaintiffs. The Court listed the proceedings for directions on 14 August 2024 with the intention of allocating a hearing date. The plaintiffs were ordered to pay the defendant’s costs.
On 14 August 2024, the plaintiffs did appear. Orders were made including for the plaintiffs to serve evidence in response by 27 September 2024, and for the matter to be listed for directions on 2 October 2024.
On 2 October 2024, the plaintiffs sought an adjournment by email at 9.45am, the listing having been at 9.30am. The proceedings were listed for directions on 11 October 2024. Again, the plaintiffs did not appear.
On 23 October 2024, the Court made orders that the plaintiffs were to serve any further evidence by 13 November 2024. This did not occur.
On 15 November 2024, the plaintiffs again raised their proposed amended pleadings and confirmed that Mr Maghami of Counsel was briefed in the matter.
On 20 November 2024, the Court made orders that the plaintiffs were to serve a copy of any proposed amended statement of claim by 29 November 2024.
On 4 December 2024, the plaintiffs sent the proposed amended statement of claim to the defendant. However, the document did not have the changes underlined or struck out.
On 10 December 2024, the plaintiffs sent a marked up version of the proposed amended statement of claim to the defendant. This also did not comply with the UCPR. The defendant advised that he did not consent to the proposed amended statement of claim being filed.
On 17 December 2024, the plaintiffs filed a notice of motion seeking leave to file their amended statement of claim. The motion was listed for 7 February 2025. In his supporting affidavit dated 16 December 2024, Mr Rajeev deposed:
“4. On 17 April 2024 the Plaintiffs filed a Statement of Claim in Court…
11. The delay in filing the [proposed amended statement of claim] has been due to the fact that since the parties attended the mediation, previous Counsel and I were trying to settle the matter out of Court.
12. Attempts at settlement took some time more than the normal course of time it takes for similar matters because the Second Plaintiff’s busy schedule in his businesses and recent family events.
13. The Second Plaintiff’s Father passed away last year. During the period from November 2023 to February 2024, the Second Plaintiff had to travel to India a number of times to settle his Father’s affairs in India.
14. Furthermore, it was difficult to get instructions to transition the matter from previous Counsel to the new Counsel given the complexity of the matter.
15. While I understand that the matter has been on foot for a number of years, I wish to note that the delay was not solely attributable to the Plaintiffs noting that the Defendant sought to amend their pleadings a day before the matter was listed for hearing on one occasion.
16. The Plaintiffs have agreed to pay the Defendant’s costs thrown away as agreed or reserved.”
On 20 December 2024, the proceedings were listed for hearing before me to commence on 10 June 2025 with an estimate of 8 days.
On 5 February 2025, the Court ordered the listing of the plaintiffs’ motion on 7 February 2025 be vacated, and that the defendant file evidence in response to the motion by 14 February 2025.
In Mr Ivers’ affidavit sworn on 14 February 2025, he deposed that since the filing of the plaintiffs’ commercial list statement on 26 June 2019, no leave had been granted for the plaintiffs’ pleadings to be amended, nor had they filed any further pleading in support of their claim. Mr Ivers deposed that paragraph [4] of Mr Rajeev’s affidavit dated 16 December 2024 (see [48] above) was not agreed, the online registry did not allow them to download any alleged statement of claim filed on this date, no orders were made granting the plaintiffs leave to file a statement of claim in Court, no copy of the statement of claim allegedly filed has been served, and the plaintiffs had made numerous assertions of an intention to file an amended pleading after 17 April 2024.
Mr Ivers also deposed that paragraph [15] of Mr Rajeev’s affidavit was not agreed and relied upon paragraph [77] of his affidavit dated 8 April 2024 in which he deposed that:
“[77] In this paragraph, Mr Rajeev has asserted that the main reason for final hearing of the proceeding being vacated was due to Mr Goel seeking to file an amended pleading. This is not agreed. Whilst Mr Goel accepts that an application was made within close proximity to the hearing seeking leave to file an amended statement of cross-claim:
a. the matter was relisted by the trial judge because the plaintiff had failed to comply with the usual orders for hearing, including by failing to prepare a Court Book, notwithstanding Madison Marcus' numerous requests for a Court Book to be prepared. I refer to paragraphs 22 to 23 of My First Affidavit, together with the letter from Madison Marcus to Vaikom Law at pages 8 to 9 of Exhibit DJl-1;
b. his Honour determined that the hearing could not proceed for this reason; and
c. the proposed amendments to the statement of cross-claim were not significant.”
On 25 February 2025, the matter came before me for directions. Ms Savage, Solicitor, appeared for the plaintiffs as agent and Mr Ivers, Solicitor, appeared for the defendant. Mr Ivers informed the Court that the main reason for opposing the plaintiffs’ amendments was that the plaintiffs were seeking to add four new defendants to the proceedings and include an additional 17 prayers for relief, including allegations of constructive trust. It was put to the Court that numerous orders have been made with respect to the proposed amended pleading over the course of two years, which had been ignored by the plaintiffs.
In response, the following exchange occurred with Ms Savage:
“HIS HONOUR: Yes, well Ms Savage, what do you say? You’re the agent I see. Do you have any active carriage of this matter, or are you just here as an agent?
SAVAGE: I am here as an agent, but my sole role has been to sort of get the matter back on track. My instructor is the principal of the firm, has been involved in some other litigation, and hasn’t been able to take carriage of this matter as actively as perhaps he should have.
HIS HONOUR: When did your principal come onto the record?
SAVAGE: My instructing principal?
HIS HONOUR: Yes.
IVERS: Since the commencement.
SAVAGE: Since the commencement.
HIS HONOUR: Who is that?
SAVAGE: Mr Vaikom Rajeev.
HIS HONOUR: Do you work for Mr Rajeev, or are you another firm?
SAVAGE: I work at another firm your Honour, Bell Partners Legal.
HIS HONOUR: And when you say your job has been to try and get the matter on track, what does that mean?
SAVAGE: I’ve appeared in directions since the end of last year.
HIS HONOUR: So does your firm now have the active carriage of the matter?
SAVAGE: No your Honour.
HIS HONOUR: Why is Mr Rajeev not here today to explain all this to me?
SAVAGE: I understand he is in other matters, in another jurisdiction.
HIS HONOUR: I see. And was that communicated to my associate when we fixed today--
SAVAGE: No.
HIS HONOUR: -- that he would not be able to be here?
SAVAGE: No your Honour.
HIS HONOUR: Well I take it you are not in a position to argue this motion today?
SAVAGE: No, that’s correct your Honour.
HIS HONOUR: And do you intend to brief counsel to argue the motion?
SAVAGE: Yes we have new counsel instructed, and I have the available dates.
HIS HONOUR: Who is that?
SAVAGE: Faraz Maghami.
HIS HONOUR: Well I propose to deal with this matter very promptly, because if you are to get the relief you seek, then, I have absolutely no view on that at the moment, it’s best that we work that out quickly…
HIS HONOUR: And, Ms Savage, you might want to convey to your principal, because I really do not understand what the relationship is, and what is going on with the carriage of this matter, but unless there’s a very good reason I would expect that Mr Rajeev will be present in court for the hearing of the motion given he is, who I understand is the solicitor on the record should be present for the hearing of the application. Unless there is a very good reason not to be.
SAVAGE: Thank you your Honour, I will convey that.
HIS HONOUR: Because you can convey the Court’s dissatisfaction with the history of this matter, and I expect the solicitor on the record to attend on an important motion such as this, particularly when he has sworn the affidavit in support. There may or may not be an application for cross-examination, I would deal with that application on its merits at the time of the hearing, if notice is given that he may be required for cross-examination.”
(Tcpt, 25 February 2025, p 2(9))
On that date, the Court ordered the plaintiff to serve and file a full written outline of submissions on the motion and any additional evidence by 28 February 2025.
On 5 March 2025, the plaintiffs filed their written submissions.
On 10 March 2025, I heard the plaintiffs’ motion. Mr Maghami of Counsel appeared for the plaintiffs and Ms Keynes of Counsel appeared for the defendant. The proposed amended statement of claim was incompletely marked up and required a line by line examination to ascertain the proposed amendments. The following exchange occurred:
“MAGHAMI:… Can I start by saying that this, your Honour? I’m only putting this as a matter of fact, not as an excuse. I’ve only inherited this matter. The handling of these proceedings, based on my reading of what I’ve been given, is less than sterling.
HIS HONOUR: Completely unsatisfactory.
MAGHAMI: Your Honour, I think the words I used were atrocious, but I wasn’t going to say that on the record.
HIS HONOUR: You’re allowed to make that concession. It’s a wise one.
MAGHAMI: Quite. With my late intervention, the hope is, and I put that as high as I can, that the matter can be streamlined. I’ve had a very lengthy discussion with my instructors. I have attempted to seek as best as I possibly can what’s occurred. I seek instructions in relation to that. But can I make two concessions? One, the handling of this case on our part has just been completely less than satisfactory to the point of almost being less than satisfactory. Firstly. Secondly, the pleadings that I’ve been provided that your Honour has been grappling with. I’m sorry that we’ve had to burden your Honour with having to compare two sets of documents in circumstances that is not in any way the job of the Court to do.
HIS HONOUR: Just for the benefit of people sitting behind you. Sidelining is not enough. Everything has to be underlined that is being sought to be advance. I know you know that, but with great respect the documents that I’ve got just don’t do that…”
(Tcpt, 10 March 2025, p 4(5))
“HIS HONOUR:… But the problem I see in the pleading at the moment, subject to anything you may want to say is it just doesn’t make out – it doesn’t plead enough facts to get a constructive trust.
What sort of constructive trust? What fact is there that’s pleaded against any of these defendants that would affect their consciences? When were they on notice? Of what were they on notice? I can’t see it. Without that, subject to anything you may say, I don’t see how the claim runs.
MAGHAMI: That was going to be the second point or second concession. I was going to make that – I’ve provided certain advice in that regard. That the constructive trust claim faces difficulties. That the balance of the objections put against us does in the sense that the constructive trust claim is potentially a matter that, under current pleadings, I cannot say to the Court that it should run as pleaded.
HIS HONOUR: Well that’s an entirely proper concession with respect. But I’m not going to give your side a chance to fix it up.
MAGHAMI: I accept that.
HIS HONOUR: It seems to me what we ought to do, if there is any utility in it – I’m happy to do this, is to go through this. Make clear what it is I am proposing to allow, because to be quite frank and clear again, the third representations part two seems to me to be at the moment hopeless as a matter of pleading. I will not allow it to be amended because it just doesn’t disclose the causative actions that are purported to be pleaded. As I understand your concession, that’s really where we’re at.
MAGHAMI: Quite.”
(Tcpt, 10 March 2025, p 5(41))
“HIS HONOUR: … What I think ought to happen for everybody’s sanity, Mr Maghami, is that your side should bring in an amended – a fresh version of the amended statement of claim that conforms with this, and does nothing else.
I would propose that you provide that to the other side as a draft, so that everyone could agree that it’s where we’ve got to today. That can presumably be done fairly quickly. How long do you want to do that Mr Maghami? Just to provide the other side with a conformed document?
MAGHAMI: If your Honour would allow me two days. I’m going to take reins of this myself. I’m going to make sure I supervise the process.
HIS HONOUR: Thank you, Mr Maghami. The Court appreciates that. Why don’t we say if you can provide that to the other side – is the 12th, two days. So by Wednesday afternoon?
MAGHAMI: Certainly, your Honour.”
(Tcpt, 10 March 2025, p 11(24))
The orders of the Court on that occasion were for the plaintiffs to provide the defendant with a draft version of the new amended statement of claim by 12 March 2025 and file it by 18 March 2025. A trial plan was also ordered to be provided by 6 May 2025 as either an agreed trial plan or two proposed trial plans. The plaintiffs were ordered to pay the defendant’s costs thrown away by reason of the amendments as well as his costs of the plaintiffs’ motion.
The plaintiffs did not file their amended statement of claim until 26 March 2025, and only then after two follow up emails from the defendant. No sealed copy has ever been served on the defendant.
On 6 May 2025, the defendant provided his proposed trial plan by email, and informed the Court he had not received a response from the plaintiffs despite repeated attempts to contact them. The unhappy history of this matter seemed to be repeating itself.
The matter returned for directions on 7 May 2025 at 9.45am. Ms Keynes of Counsel appeared for the defendant and, yet again, there was no appearance for the plaintiffs. Ms Keynes informed the Court that the last correspondence with the plaintiffs’ legal representatives was on 26 March 2025, and that the defendant had emailed the proposed trial plan to them on 2 May 2025 but had not received any response. The matter was stood down until 4pm, and the following direction was made:
“HIS HONOUR: … So the only order I make at the moment is that this directions is adjourned to 4pm today. I should formally record: I direct that the defendant, by their solicitors, both by email and by more than one telephone attempt, inform the solicitors for the plaintiff that if there is no appearance for the plaintiff at 4pm today, the Court will dismiss the statement of claim with costs and will hear from the defendant/cross-claimant as to what is to occur in relation to the cross-claim.”
(Tcpt, 7 May 2025, p 4(1))
“On 7 May 2025 at 10:20am, I telephoned Vaikom Law on (02) XXXXXXXX. A lady answered the phone, who introduced herself to me as Kavitha. We had a conversation in words to the following effect:
I said: My name is Natasha and I am calling from Madison Marcus Law Firm in relation to your client SNS Petro. Can I please speak with Vaikom Rajeev.
Kavitha said: Vaikom is not in the office. He in Court right now. Can I take your phone number and a message and I will ask him to call you back.
I said: Yes, can he please call me back. My number is XXXXXXXXX.
Kavita said: Can I confirm XXXXXXXXXX?
I said: Yes. Can you leave a message for Vaikom that the matter was listed for directions in Court at 9:45am this morning. No one from your office attended. As there was no appearance on behalf of your client, the Judge stood the matter down until 4pm today. The Judge directed us to call your office to advise you that if there is no appearance on behalf of your client at 4pm today, the Court will dismiss your client's statement of claim and hear from us as to what should occur in relation to the cross-claim.
Kavitha: Ok thank you. I will leave a message…
At 10:47am, Madison Marcus sent an email to Vaikom Law. Annexed hereto and marked "D" is a copy of this email.
At 11:35am, Madison Marcus received an email from Vaikom Law. Annexed hereto and marked "E" is a copy of this email.
At 11:45am, Madison Marcus sent an email to Vaikom Law. Annexed hereto and marked "F" is a copy of this email.
At 12:50pm, Madison Marcus received an email from Vaikom Law. Annexed hereto and marked "G" is a copy of this email.
At 12:54pm, telephoned Vaikom Law on (02) 7240 7819. Kavitha answered the phone again. I recognised her voice and she introduced herself as Kavitha. We had a conversation with words to the following effect:
I said: My name is Natasha and I am calling again from Madison Marcus Law Firm in relation to your client SNS Petro. Can I please speak with Vaikom Rajeev. I have not yet received a call back from him.
Kavitha said: Vaikom is not in the office. He is still in Court. Can you leave a message and I will ask him to call you back.
I said: Is there any other solicitor I can speak to in relation to your client SNS Petro?
Kavitha said: The other person who can assist is Sunil. However, Sunil is also in Court right now. Can you leave another message?
I said: We confirm we will not be mentioning your clients' appearance today at 4pm. His Honour Justice Kunc directed our firm to call your firm twice to advise you that if there was no appearance on behalf of your clients at 4pm today, his Honour would dismiss your clients' statement of claim with costs and would hear from our client as to what should happen in relation to our client's cross-claim.
Kavitha said: Can you also write that in an email to us?
I said: Yes, what is your email.
Kavitha said: admin@myrudra.net
At 1:44pm, Madison Marcus sent an email to Vaikom Law. Annexed hereto and marked "H" is a copy of this email.
As at the time of swearing this affidavit at 3:20pm on 7 May 2025. Madison Marcus has not received a response to the above email from Vaikom Law.”
“Dear Colleagues
We refer to the above matter and our phone conversation with Kavitha of your office today.
The matter was listed for directions before His Honour Justice Kunc at 9:45am this morning. As there was no appearance on behalf of your client, His Honour has stood the matter down until 4pm today, 7 May 2025.
His Honour directed us to call and email your office to advise you that if there is no appearance on behalf of your client at 4pm today, the Court will dismiss your client's statement of claim and hear from the cross-claimant as to what should occur in relation to the cross-claim.
Kind regards,
Natasha Franca”
“Colleagues
I am in a jury trial and there was a mishap in my staff diaries due to administrative oversight. Can you kindly mention our appearance and seek orders by consent. We consent to your proposed trial plan.
We look forward to hearing from you urgently.
Regards
VAIKOM SUNDAR RAJEEV”
“Dear Colleague
We will not be mentioning your appearance this afternoon.
Kind regards,
Natasha Franca”
“Colleagues
Our agent will be in attendance after a motion at Downing Centre. Please ensure your office will be in attendance in court. We are unable to advise the exact time she will be and accordingly we note that we will call for the matter to be dealt with in your absence should anyone not be in attendance.
Regards
VAIKOM SUNDAR RAJEEV”
“Dear Colleagues
We refer to:
1. my two (2) telephone conversations with Kavitha at 10.20am and 12.54pm today; and
2. your email of 7 May 2025 at 12.49pm.
As discussed with Kavitha, we again confirm the following:
1. the matter was listed for directions before his Honour Justice Kunc at 9:45am this morning;
2. there was no appearance on behalf of your clients;
3. His Honour stood the matter down until 4pm today, 7 May 2025; and
4. His Honor directed our firm to call your firm twice and to email your firm to advise you that if there was no appearance on behalf of your clients at 4pm today, his Honour would dismiss your clients' statement of claim with costs and would hear from our client as to what should happen in relation to our client's cross-claim.
In answer to your email, we note that the matter has been listed at a specific time, being 4pm.
We otherwise reiterate that we will not be mentioning your clients' appearance.
Kind regards,
Natasha Franca”
“HIS HONOUR: What do you know about this matter, Ms Shafizadeh?
SHAFIZADEH: I’ve been given very limited instructions. Simply that the trial is listed for June 2025 and that all the evidence has been exchanged. I’ve been told that the defendants have proposed a trial plan, which I’ve been instructed to consent to…
SHAFIZADEH: Your Honour, if I may? I do understand I have limited instructions and I can obtain further instructions. From my understanding, it appears to me be counsel's argument that effectively there's been no appearance by the solicitor in carriage and so effectively the case should then be dismissed, but there is an appearance. I am appearing as an agent. I do understand my instructions are limited, but I can obtain those instructions.
My understanding was that we're in for directions so it's not as though there needs to be any in depth discussion about the issues in the case for the other the defendant to be prejudiced in any way for the matter to be dismissed. I feel like it's with respect a very weak basis to put forward that the case be dismissed because the solicitor with carriage isn't present for a directions hearing. I do
HIS HONOUR: Unfortunately I think you are not seized of the very unhappy history of this matter.
SHAFIZADEH: No, your Honour.
HIS HONOUR: If this was a matter that had run with exemplary efficiency and compliance with the court's orders, I wouldn't be terribly fussed about what's happened today. So this is not a reflection on you and it's not a reflection on the fact that you're here as agent. My real concern is, given the history of this matter, that I again am concerned that the plaintiffs are just not serious about running this case. That's really what it boils down to and I am not going to have a fixture of a number of days I think it's eight days but potentially there's a trial plan for five in June taken up only to find that yet again the plaintiffs will fall at the last hurdle when everybody's geared up to prepare for an eight day hearing.
What I am minded to do is to fix the matter for a further directions hearing next week, at which time the plaintiffs will have to show cause as to why I should not strike out their claim for want of prosecution with an order for costs, and if they persuade me that I shouldn't do that next week, I'll make some directions…
HIS HONOUR: I'll give you leave to rely on whatever you want. The other difficulty, which you may wish to pass back to your principal, Ms Shafizadeh, is that on the last occasion, which was 10 March, your client was represented by Mr Maghami of counsel. Mr Maghami of counsel was here when I pronounced the orders as to the next return date, and yet there is nothing in the evidence that has been provided to me, or any email, as to what's happened to Mr Maghami, and why he or some other counsel wasn't able to be here this morning, and I'm not satisfied that in that situation there's been an adequate explanation by just saying, "Oops, there was an administrative oversight in our office". As I say, you are not seized, and I wouldn't expect you to be seized, of the very long history of the matter.
What I will do, however, is we will provide to the parties a transcript of what's happened this afternoon so that the plaintiff is seized of everything that has occurred and everything that I have said. I will appoint 9.30 next Wednesday, the 14th, if that's convenient, Ms Keynes.”
“The proceedings are listed before Kunc J at 9.30am on 14 May 2025, for the purposes of the plaintiffs showing cause as to why their proceedings should not be dismissed with costs for want of prosecution, and any evidence which any party wishes to rely upon in relation to that question, together with any outline of submissions, is to be served and filed, by email to the Associate to Kunc J, no later than 2pm on 13 May 2025.”
“On 02 May 2025, the Defendants had sent their proposed trial plan. Annexed herewith and marked with letter, "A" is the copy of e-mail dated 02 May 2025. I admit that I could not respond to that e-mail immediately. I have a jury trial that commenced before Judge Arnott in the District Court at Campbelltown on 05 March 2025. This is an attempted Murder trial for 3 weeks. I also had a number of staff related issues where our Legal Secretary started working from Muswellbrook. I had to get a new replacement who has to get upto (sic) speed with the diarising. Due to the initial confusion and administrative oversight coupled with Counsel's insistence that I attend the trial because of the complexity of the matter, I could not secure anyone to attend the directions hearing on 07 May 2025 in the morning.
I apologise to the Court for my mistake and error. However, I had requested the Defendant's Solicitor to mention our appearance and that we agree with the proposed trial plan on 07 May 2025. Annexed herewith and marked with letter, "B" is the copy of e-mail communications dated 07 May 2025.
I also apologise to the Court for my inability to attend Court due to my ongoing jury trial and confirm no disrespect is intended.”
“OGBORNE: Essentially, that my instructing solicitor has failed to appreciate the proper purport of the hearing today and was focussed on, to the extent that he has, explaining the non-appearance on 7 May and not on the broader matter that’s actually before the Court today. I had picked up from the transcript on the 7th that your Honour had identified exactly the same matter that your Honour has this morning as being the crux of it, namely, satisfaction that the matter was, in fact, going to be going ahead and I would, in due course, going to be seeking an indulgence for some evidence to be put on on that specific matter.
HIS HONOUR: Mr Ogborne, we sent the transcript – I think this is right – of that occasion to your solicitor precisely to ensure that he was completed seized of what today was about and I hope – I trust it was clear to you when you read the transcript that this is a show cause hearing…”
(Tcpt, 14 May 2025, p 3(15))
The defendant had complied with the directions which I made on the afternoon of 7 May 2025. The defendant’s evidence and submissions were directed to an order that the plaintiffs’ claim and defence to the cross-claim be dismissed for want of prosecution. However, I proposed an alternative for the parties’ consideration, namely that in the exercise of the Court’s inherent jurisdiction to control its own procedure, the Court would order the plaintiffs to provide $50,000 security for costs two weeks before the date fixed for the final hearing. The reasons for this were:
Given the history of the matter, including the most recent non-compliances with the Court’s directions, I had come to the view that there was a real prospect that the defendant was at risk of preparing for a hearing fixed for up to eight days only to find the plaintiff would not appear, not be ready or make a further adjournment application on some other basis.
That same risk meant that days which the Court had allocated for the hearing would be wasted, given that other matters could have been fixed for hearing in that time.
I considered that dismissing the plaintiffs’ claim and defence to the cross-claim would be to go too far if the plaintiffs were not given one last opportunity to show that they were diligently prosecuting the proceedings in good faith.
The matters in sub-paragraphs (1) and (3) could be satisfied if the plaintiffs were required to provide security for the defendant’s costs of preparation for the hearing. The evidence that had been filed by the defendant as to his likely costs to prepare and conduct the proceedings enabled me to estimate a figure of preparation costs on a party/party basis of $50,000.
After a short further adjournment, Mr Ogborne informed the Court that his clients consented to an order that they provide $50,000 in security two weeks before the hearing date. These orders were made:
“1 That the plaintiffs’ solicitor is not to charge the plaintiffs for any of his costs and disbursements (including agent’s fees) incurred by him of and incidental to the hearings on 7 May 2025 and 14 May 2025.
2 On or before 26 May 2025 the plaintiffs are to pay into Court the sum of $50,000 or provide such other security as the defendant may agree to that amount as security for the defendant’s costs.
3 If order 2 is not complied with, then with effect on and from 27 May 2025:
a) the amended statement of claim; and
b) defendant’s commercial list response
are dismissed.”
“Your Honour, my instructions are that the funds are ready to be deposited. An email has been sent to the registry to obtain account details and my instructions are that once those account details are confirmed, that the money can be transferred, and the plaintiff is asking for a 24-hour extension for the transfer of funds.”
(Tcpt, 27 May 2025, 2(4))
The plaintiffs had not informed the defendant that the money had not been paid, or that an extension of time was being sought. When asked about when she had been instructed to appear, Ms Shafizadeh informed the Court she had been instructed 20 minutes before the appearance.
The Court’s position was formulated as:
“I’m not proposing to grant any extensions. If the money is placed in the account then an application can be made but I’m not proposing to amend the orders I made on the last occasion. It’s open to your client if and when the money is actually paid into the Supreme Court account to relist the matter and we’ll see where we are at then but I’m not going to have the Court put out or the defendant is disadvantaged if the money doesn’t come as quickly as you say.”
(Tcpt, 27 May 2025, p 2(30))
“HIS HONOUR: Yes. And, with great respect, Ms Shafizadeh, it’s not your fault but this is yet another example of the plaintiffs acting at the very last minute. This could’ve all been sorted out. They’ve had plenty of time to get the money and they could’ve told somebody yesterday that something was happening. But, I’m not going to do anything. I will of course hear from the plaintiffs if and when the money is paid into court…
Again I emphasise, Ms Shafizadeh, for the benefit of your client that if and when, if it [sic] still chooses to pay the money in and wishes to make some application, it should obviously do so as quickly as possible by contacting my associate and we will see what we can do.”
(Tcpt, 27 May 2025, p 3(12))
Between 27 May 2025 and 10 June 2025, no money was paid by the plaintiffs into Court. The defendant prepared for a one day undefended hearing.
On 6 June 2025, a notice of motion was filed by the plaintiffs in the Commercial List (from which the proceedings had been removed in March 2021), seeking an order under UCPR r 36.16 for the proceedings to be reinstated and that the order requiring the payment of security be set aside (notwithstanding that the plaintiffs had consented to the order for security). In the alternative, the motion sought the orders be varied to allow the payment of security to be paid by way of bank guarantee or security bond by 20 June 2025, and the hearing be vacated.
In his supporting affidavit dated 6 June 2025, Mr Rajeev deposed:
“I was involved in an extended criminal jury trial before His Honour Judge Arnott in the District Court at Campbelltown during May 2025. This trial lasted for approximately three weeks and consumed my complete attention as it was a serious matter with substantial preparation and in-court responsibilities.
During this time, multiple members of my staff at Vaikom Law resigned without notice, leaving my firm severely short-staffed and overwhelmed. Despite my best efforts, I was unable to delegate or otherwise maintain timely oversight of this matter.
To compound the difficulty, counsel briefed in this matter withdrew at the last minute, exacerbating the disruption and further delaying my ability to respond to the Court's orders.
These events resulted in a regrettable but genuine breakdown in the functioning of my office during this critical time. I again apologise to the Court and to my client, and take full responsibility.
Security for Costs Order
Pursuant to order 2 of the orders of Justice Kunc dated 14 May 2025, the Plaintiffs were required to pay $50,000 into Court or provide other agreed security by 26 May 2025.
We attempted to clarify with the Registry the procedure for making the payment into Court, particularly requesting bank account details and reference number. However, no response was received despite our email (a copy of which is annexed) Annexed herewith and marked with letter, "B" is the copy of e-mail to the court and the reply received.”
“Dear Registry,
I refer to the above matter and advise that there was an order dated 14 May 2025 requiring the plaintiff to pay the sum of $50,000 into the court as security for costs.
I kindly ask that we may be provided with the court's bank account number to facilitate the transfer.
I note that whilst Mr Rajeev was on trial, our office has been in contact with the registry in an attempt to obtain bank details.
We look forward to hearing from you soon.” (Emphasis added.)
The second email, dated 2 June 2025 at 11.49am, was from the Court Revenue & Trust Account Coordinator replying to the above email and set out the appropriate bank account details and instructions.
No evidence was provided of the previous attempt to obtain the bank account details that was alleged to have occurred in that part of the 26 May 2025 email which I have italicised.
On 10 June 2025, the matter came before the Court for the hearing of the cross-claim. Mr Smallbone of Counsel appeared for the plaintiffs and Ms Keynes of Counsel appeared for the defendant. Mr Smallbone did not appear to have been properly instructed as to his clients’ position, being under the misapprehension that their defence to the cross-claim was still on foot. Once the plaintiffs’ position was clarified and Mr Smallbone had received further instructions, Mr Smallbone made an application to vary the orders that had been made on 14 May 2025, vacate the hearing and reinstate both the plaintiffs’ claim and their defence to the cross-claim. A proposal for security for costs was made on terms whereby $20,000 would be paid within 24 hours, and the remaining $30,000 would be paid in $10,000 instalments every three weeks by means of bank guarantees.
Mr Smallbone moved on the notice of motion dated 6 June 2025 (see [79] above), relying on UCPR r 36.16. Mr Smallbone submitted that dismissing the defence to the cross-claim did not dismiss the proceedings, but that there may be a difference between the claim and the cross-claim. As such, r 36.16(3) was relied on with respect to the defence to the cross-claim, while the Court’s inherent power was relied upon for the revival of the plaintiffs’ claim.
Mr Smallbone called the second plaintiff, Mr Saigal, to give oral evidence. Mr Saigal gave evidence that there was $20,000 in his solicitor’s trust account which was intended to pay his own counsel and legal fees but that could be paid into court the next day. When asked whether he would still be able to fund the case, Mr Saigal stated that he would try, and it would require him to secure a small business loan that would take three to four days. Mr Saigal gave evidence that if he had more time, he would be able to raise the remaining funds for the security in instalments as he was expecting some funds from overseas from his mother, who was unwell, and he had a service station business in Harvey Bay in Queensland or he would get a loan. Mr Saigal further gave evidence that he has a vacant property in Thrumster near Port Macquarie and some jewellery, but most assets were in his wife’s name.
Mr Smallbone submitted there was evidence of an attempt being made to meet the orders made on 14 May 2025, however, they miscarried. It was further submitted that granting the motion would achieve the object of having an expeditious determination on the merits of the case, in accordance with the overriding purpose under the Civil Procedure Act 2005 (NSW) (CP Act). “Expeditious” was clarified to mean avoiding further future undue delay. The consequence of shutting out the defence to the cross-claim was submitted to be a very severe consequence, which would be disproportionate to the objects of the CP Act. It was also accepted by the plaintiffs that an order for the costs thrown away would be made against them if the hearing was vacated.
Ms Keynes submitted that the references in the affidavit of Mr Rajeev to interlocutory issues and breaches by the defendant were misleading. It was submitted the only breach involved filing submissions on a Thursday morning when they were due on the Wednesday. It was argued that such statements from the plaintiffs were part of an ongoing theme of an unwillingness to take responsibility. It was submitted that the various points raised in Mr Rajeev’s affidavit about the trial and staffing had no evidence to substantiate them, and did not provide sufficient justification for failing to give this matter the required attention.
It was submitted that while some evidence was provided about inquiries being made with the registry about the procedure for paying the security for costs, assertions made in the affidavit about being ready to pay the security for costs did not accord with the evidence given by Mr Saigal in the witness box. Nor did Mr Saigal’s evidence accord with the instructions of Ms Shafizadeh as she expressed them to the Court on 27 May 2025 that the money was ready to be paid and that payment could be made by 3pm on that day (see [74] and [77] above). The fact that, on the first day of the hearing, the plaintiffs were not ready to run the matter was submitted to be the very issue the Court was attempting to avoid by having made the security for costs order. With respect to the aims of the CP Act, it was submitted that the plaintiffs had not prosecuted the claim in the fashion it required, and that the Court would not be satisfied regarding the plaintiffs’ ability to prosecute the claim in a timely fashion on a future date, or to provide the security for costs.
The notice of motion was dismissed with costs. I indicated that reasons would be provided in this judgment. In essence, the Court accepted Ms Keynes’ submissions. In particular:
There was no suggestion in the plaintiffs’ evidence (being Mr Rajeev’s affidavit and Mr Saigal’s evidence in the witness box) that the $50,000 had been available to be paid or “ready to be deposited” (to use Ms Shafizadeh’s description) on 27 May 2025 (see [74] above). If that had been the case, it would have been a simple matter to say so. The absence of such evidence and the fact that it was never paid suggests, and the Court finds, that it was never available. Accordingly, the Court can only conclude (which I do on the Briginshaw standard) that what it was told by Ms Shafizadeh on 27 May 2025 was false. I immediately record that I unreservedly accept that what Ms Shafizadeh told the Court was on instructions, so no fault can be attributed to her. She had clearly been at the receiving end of multiple “hospital passes” in her appearances in this matter. However, the Court can make no finding, and does not do so, as to whether the person (whoever it was) who gave her those instructions was aware of their falsity.
It was clear from Mr Saigal’s evidence that the Court could not be satisfied that the security could be provided within a reasonable time or at all. Thus, there was no justification to allow the adjournment in the hope that might occur.
To have varied the Court’s orders and allowed the adjournment would have been to undermine the very reason why they had been made in the first place. This was to ensure that, given their history, if the plaintiffs were not able or willing to prosecute their case at the hearing, there would be funds available to meet the costs the defendant would have incurred in preparing to meet that case at a hearing fixed for between five and eight days. To accede to the plaintiffs’ belated (again) application would be to give the plaintiffs yet another in a series of many “one last chances”, which would result in further delays to resolving a matter that had already been before the Court for far too long through no fault of the defendant. It would be completely contrary to the overriding purpose to have acceded to the plaintiffs’ application, or at least to do so in the absence of the most compelling evidence that the Court’s orders would be complied with. Such evidence as there was pointed firmly to the opposite conclusion.
Insofar as the plaintiffs’ problems had been caused by their solicitor, Mr Rajeev’s explanations were unsatisfactory and reflected conduct that had apparently been going on for years in his management of the proceedings. The plaintiffs had continued to retain Mr Rajeev and to the extent that the fate of the proceedings had been sealed by the conduct of their solicitor, it was a matter between the plaintiffs and that solicitor.
Given the overall history of the matter, including the large number of costs orders in favour of the defendant and the many indulgences given to the plaintiffs, the proceedings should no longer be delayed and the defendant no longer vexed by having them unresolved.
The hearing of the cross-claim then proceeded on an undefended basis. The Court was assisted by written and oral submissions by Ms Keynes for the defendant. Quite properly, in my respectful opinion, Mr Smallbone withdrew shortly after Ms Keynes’s began to address on the cross-claim, because his clients had no role to play.
Ms Keynes described the cross-claim as a very simple case of breach of contract. The breach relates to an agreement between Mr Goel and Mr Saigal as to the distribution of the profits of a service station at Old Bar operated by SNS Petro on premises owned by DIB Group Pty Ltd, as well as the failure of Mr Saigal to make Mr Goel a 50% shareholder of SNS Petro when it was incorporated.
Based on the evidence read in Mr Goel’s case, the Court finds the facts to be as follows.
The evidence of Mr Goel and his friend Mr Mohit Sharma establishes that an agreement was entered into between Dib Group, Mr Goel and Mr Sharma on behalf of the MHT Group of Companies Pty Ltd (Dib Agreement). This agreement was for $100,000 plus GST to be paid to Dib Group by Mr Goel, MHT to sign a lease for the premises and obtain a licence to allow the operation of the business with the Dib Group, and for works to be undertaken to renovate the premises to be used as a service station.
An email from Dib Group, which was forwarded from George Dib to Mr Goel on 2 February 2025 set out:
“Metro Petroleum are here to offer you the proposal of Shell Old Bar.
Shell Old Bar includes both service station and two bay workshop.
Hopefully we can come to an agreement. Here are the proposed terms:
If terms are agreed, the changeover date is 18/2/15.
The lease must undertake the following works if required,
Also as spoken in past Medco Foster must also have a 5 year supply agreement with Metro Petroleum.”
While the agreement was a verbal one, Ms Keynes submitted this email reflects the parties’ understanding of the agreement Dib Group. An unsigned copy of the lease between Dib Group and MHT Group was in evidence.
It was agreed between Mr Goel and Mr Sharma that MHT Group would run the day to day aspects of the service station business. The profits would be split 50/50 (MHT Agreement). It was submitted that while neither Mr Goel nor Mr Sharma expressly stated the expenses would be split 50/50, Mr Goel deposed in his first affidavit dated 2 November 2020 that Mr Sharma stated “We can pay 50/50 and be partners in equal shares”, while Mr Sharma deposed in his affidavit that he stated to Mr Goel “I will get MHT Group to sign the lease, but it will be 50/50 partners, like always between you and MHT Group.”
Bank records show that Mr Goel made payments between April and June 2015 to Dib Group of the required $100,000. MHT entered into a lease with Dib Group for the premises, together with a fuel reselling agreement, and began renovating the premises. The evidence shows that the service station was in operation from July 2015.
“SNS Agreement
1920 In or about mid December 2015 Gaurav, Shobhit and Mohit on behalf of MHT Group entered into an agreement for Shobhit to purchase MHT Group’s share in the Service Station Business operated in accordance with the Licence granted by Dib as set out above and for Gaurav and Shobhit to thereafter operate the Service Station Business (SNS Agreement)…
2021 It was an express term of the SNS Agreement that Shobhit would pay $200,000 to MHT Group in return for a 50% share in the Service Station Business, such that Shobhit would be entitled to 50% of the profits of the Service Station Business…
2122 It was an express term of the SNS Agreement that Shobhit would incorporate a company to operate the Service Station Business and that Shobhit would add Gaurav as a shareholder of the company on incorporation so the shares would be held between Shobhit and Gaurav on a 50/50 basis…
2324 It was an express term of the SNS Agreement that:
a. Shobhit would be responsible for the day-to-day operations of the Service Station Business in consideration for Shobhit receiving 50% of the profits of the Service Station Business, and was not otherwise entitled to remuneration or consideration for managing day to day operations;
b. ShohbitShobhit would pay Gaurav the remaining 50% of the profits of the Service Station Business.”
The Court pressed Ms Keynes about the evidence to support paragraph 22 of the cross-claim. She submitted that it was irrelevant to the damages claim whether Mr Goel was to be made a shareholder or not, because the agreement operated to share the profits evenly. No direct evidence was put forward to support paragraph 22, and the highest the evidence rose was that Mr Goel’s understanding from the conversation set out in the next paragraph was that he would become a shareholder of SNS Petro.
Mr Goel deposed:
“In about early December 2015, shortly after my discussion with Mohit, Shobhit visited my home in Mortdale, NSW. We had a conversation of words to the following effect:
Me: “I own 50 per cent in a service station in Old Bar that we have been running since March. My partner recently told me that he wants to sell his share. Are you interested in buying him out and partnering with me?”
Shobhit: “I am interested…”
In about mid-December 2015, Shobhit visited me at my home in Mortdale, NSW. During the meeting, we had a conversation using words to the following effect:
Me: “I have spoken with Mohit. He will agree to $200,000, including stock.”
Shobhit: “That’s great. Thank you.”
Me: “No problem”.
Shobhit: “And I will own 50 per cent of the business and receive 50 per cent of the profits?”
Me: “Yes.”
Shobhit: “Great. I will set up a company. I will become director and operate the business. You can look after the Dib Group’s side of things.”
Me: “Sounds good. We will split the profits evenly.”
Shobhit: “No problem…”.”
The Court is not satisfied on the basis of that evidence that there was an agreement for Mr Saigal to make Mr Goel a 50% shareholder in SNS Petro, which was incorporated by Mr Saigal as the sole shareholder on 17 December 2015.
The affidavit then deposes that Mr Saigal was unable to pay the entire amount of $200,000 and was looking for someone else to assist in purchasing MHT Group’s share. Mr Arpit Rastogi agreed to invest:
“On about 18 December 2015, I met with Shobhit and Arpit at my home in Mortdale, NSW. We had a conversation using words to the following effect:
Me: “Arpit has agreed to pay the remaining $100,000.”
Shobhit: “Arpit and I will split the 50 per cent share assigned to me evenly between us. So, 50 per cent to Gaurav, 25 per cent to Arpit, and 25 per cent to me.”
Arpit: “I agree.”
Me: “Thank you. How and when will we calculate profits? Yearly?”
Shobhit: “Yes. We start distributing some money now and at the end of each 12-month period, I will calculate the profits for the prior year and distribute.””
In his affidavit dated 1 December 2020, Mr Rastogi deposed that Mr Goel stated to him that he was “currently 50/50 partner” with Mr Sharma but Mr Sharma’s share was being sold. Mr Saigal said to him that he would be investing with him. They would pay $100,000 each and “Gaurav keeps his 50% share.” Mr Saigal further said he would set up and run the company, and he would distribute the profits between the three of them. This agreement was further varied when Mr Saigal then bought out Mr Rastogi’s 25% share in May 2016.
The Court is satisfied on the evidence that there was an agreement between Mr Goel and Mr Saigal that the profits of the service station business operated by SNS Petro would be distributed equally between them.
The claim for damages is pleaded in paragraphs 47 to 56 of the amended cross-claim. In essence, it is alleged that Mr Saigal breached the SNS Agreement by failing to cause 50 per cent of the profits of SNS Petro to be distributed to Mr Goel.
It is alleged that the money owed to Mr Goel was to be paid in two ways: by distribution at the end of each 12 month period, and through payments made to members of Mr Goel’s family at his direction. Evidence of the former is clear in the SNS Agreement (see [103] above).
In relation to the second mode of payment, it was submitted, and the Court accepts, that the agreement to distribute profits in this way was established through two pieces of evidence:
Paragraph [81] of the Affidavit of Mr Goel dated 2 November 2020 which outlines a conversation between Mr Goel and Mr Saigal to the following effect:
“I recall meeting with Shobhit in or about January 2016…. The conversation I recall having with Shobhit that day was in words to the following effect:
Me: “How do you want to distribute the profits?”
Shobhit: “I already have full-time employment and I am getting around $70,000 - $80,000 wages, so I cannot take any more on my name or I will get taxed too much. I have got a friend called Nisha and I am paying her $80,000 as wages which goes to me. That is my profit and I want you to give me your families accounts so that I can do the same for you.”
Text message from Mr Saigal to Mr Goel which read “Give me Neha’s details for income plzz”.
The evidence shows that between February 2016 and September 2017, several family members of Mr Goel were paid various sums by SNS Petro. Mr Goel deposes in his first affidavit at [61] that:
“From that time [3 February 2016], until about December 2017, Shobhit made several payments to my wife and my family members…”
“In about September 2017, I purchased a new house…
Shortly thereafter, I travelled to India…
Also, in about December 2017, I noted after reviewing bank statements that Shobhit had stopped paying my wife and family members any distributions from [SNS Petro] whilst I was in India.”
The evidence shows that the final payments made to a family member of Mr Goel was two payments in the 2017/2018 financial year.
With respect to the agreement for Mr Saigal to distribute the profits of SNS Petro after each 12 month period, Mr Goel deposes in his first affidavit:
“In about late December 2016, I met with Shobhit at my home in Mortdale, NSW. We had a conversation using words to the following effect:
Me: “Can you please provide me with the financials for the Old Bar Site which show the profits made by the business over the last 12 months? We agreed that I would be able to review our annual profits.”
Shobhit: “Yes, I will get this to you soon.”
Following the above conversation, I made several other requests to Shobhit for disclosure of the profits obtained from [SNS Petro] during the 2016 calendar year.
However, despite my requests, Shobhit did not provide me with the profit and loss for [SNS Petro] for the 2016 calendar year…
When I returned from India in about late 2017, I tried to contact Shobhit on numerous occasions. Shobhit did not return most of my calls.
The only call Shobit returned was in about late 2017. We had a conversation in words to the following effect:
Me: “It has been nearly two years now. We have not discussed out profits. Let’s meet up so we can sort out profits for the last two years so that we can distribute the balance.”
Shobhit: “Okay, we will.”
… in about early 2018, I spoke to Shobhit whilst I was at Dib Group’s office in Lidcombe… Shobhit and I had a conversation in words to the following effect:
Me: “We agreed that we were to be equal shareholders of your company. Why have you not done as we have agreed. I own half of this business and you own the other half. Transfer 50 per cent of the company to me as promised.”
Shobhit: “No. I own SNS, you do not. My name is on the legal document.”
Me: “That is not how it works, and you know it.”
The Court finds on the basis of SNS Petro’s financial records that it made the following profits totalling $432,919.22 in the years of its operation:
For the period ending June 2016, the nett profit of SNS Petro was $32,533.22.
For the period ending June 2017, the nett profit of SNS Petro was $122,516.75.
For the period ending June 2018, the nett profit of SNS Petro was **$**169,091.63.
For the period ending June 2019, the nett profit of SNS Petro was $108,777.62.
Mr Saigal made various payments to his friend Nisha Uppal which totalled $210,861. These payments were labelled as salary in the financial records of SNS Petro (and amounts were withheld for tax) and should be added back in to calculate the total distributable profit of SNS Petro.
Various payments totalling $147,553 were also made by SNS Petro to family members of Mr Goel and were also labelled as salaries in the financial records, again with amounts withheld for tax on those payments. Mr Goel accepts these should be credited to his entitlement to the profits of SNS Petro after being added back in to calculate the total distributable profit of SNS Petro:
$22,974 to Gaurang Goel
**$**58,716 to Neha Gupta
**$**46,779 to Gambhir Goyal
$19,084 to Swati Agrawal
The Court finds that the total amount of profit made by SNS Petro between 2016 and 2019 is $791,333.22 (being the sum of the amounts in [114] – [116] above). Mr Goel is entitled under the SNS Agreement to 50% of this amount, being $395,666.61.
The total amount Mr Goel has already been paid, through the payments made to his family members, is $147**,553**. As such, $248,113.61 is still outstanding. This is the measure of Mr Goel’s loss by reason of Mr Saigal’s failure to cause 50% of SNS Petro’s profits to be distributed to Mr Goel.
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SNS Petro Pty Ltd
Goel [2025] NSWSC 798