• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Catchwords: CIVIL PROCEDURE – claim under guarantee – case management – various orders sought – delay – adjournment of motion but matter listed for hearing

Legislation Cited: Nil

Cases Cited: Nil

Texts Cited: Nil

Category: Procedural rulings

Parties: THN Capital Funding Pty Ltd (First Plaintiff)
THN Capital Solutions Pty Ltd (Second Plaintiff)
Jonathan Pargan Leffler (First Defendant)
Goran Lovrinov (Second Defendant)

Representation: Counsel:
A Oakes (Plaintiffs)
Solicitors:
Swaab (Plaintiffs)
Lovejoy Legal (First Defendant)

File Number(s): 2023/00333694

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. This matter comes before me today for the purposes of hearing a motion filed by the first defendant on 22 August 2025 seeking various orders, including that leave be granted to file an amended defence, that discovery be given in respect of certain categories of documents, and that the first and second plaintiffs be restrained from taking any further step in these proceedings without the consent of the Australian Financial Complaints Authority (AFCA).

2. Mr Oakes of counsel appears for the plaintiffs. Mr Lovejoy appears by AVL (albeit absent vision) for the first defendant. Mr Lovejoy is a solicitor practising in South Australia. There was no appearance by the second defendant. He is not legally represented. I was informed that he had been made aware of the hearing today.

3. On the commencement of the hearing, Mr Lovejoy informed me that the first defendant had recently experienced some personal difficulties involving the illness of a child (I will not say anything more about that in this judgment) and thus was seeking an adjournment of the motion. Mr Oakes did not oppose the adjournment, albeit he wanted to get on with the matter and asked that the matter be listed for hearing.

4. The plaintiffs are seeking payment from the defendants of the sum of approximately $16 million. That amount is said to be owing under the terms of a guarantee signed by both defendants. The document, which is said to constitute the guarantee, is headed “Irrevocable Authority”. There are issues between the parties as to the circumstances in which the irrevocable authority was signed as well as the construction of the document.

5. Mr Lovejoy says that his client will be seeking to join the directors of one or other of the plaintiffs, or a related company on the basis that they were guilty of misleading and deceptive conduct. Mr Lovejoy says that, on the first defendant’s case, at the time that the defendants entered into the irrevocable authority, those directors knew that the principal debtor had no capacity to pay the amount. Indeed, as I understand it, the principal debtor was placed into liquidation and the liquidator reported that the company had been insolvent for three years, that is, for a considerable period prior to the irrevocable authority being signed.

6. Mr Lovejoy also says that his client wishes to join his former solicitor. Although there was some indication that he also wanted to join the solicitor for the plaintiff, Mr Lovejoy said that would not be occurring.

7. Bearing in mind that this matter was commenced in 2023 and there has been some delay (on the part of both parties), the question arises as to how to advance the matter.

8. The plaintiffs are keen to proceed to a hearing and obtain a judgment. The first defendant seeks time to amend its defence, so that the defence properly reflects the issues between the parties and also file cross‑claims against the directors and the solicitor.

9. Mr Lovejoy submits it would be in the plaintiff’s interest that those parties be joined. I assume he means that, as he considers his client has a good case against the directors and the solicitor, there may be some scope for resolution at the proceedings, as Mr Lovejoy suggests his client seemingly does not have the funds to pay the amount of the claim.

10. I am conscious that this matter has already taken too long. I am concerned that the matter not be simply adjourned until some time next year for determination of the motion. I am also concerned that, as stated to Mr Lovejoy (leaving aside the issues relating to the directors and the solicitor), the primary defence is a matter of construction only.

11. This issue could be dealt with quickly and efficiently. The plaintiffs have served all their evidence. Assuming that the issue is really one of construction, there will need to be limited evidence on such a hearing.

12. In all these circumstances, I consider that I should accede to the request of the plaintiffs to list the matter for hearing and I have listed the matter for hearing for three days commencing 20 July 2026.

13. That date is sufficiently far away for the first defendant to take such steps as he wishes. If the first defendant wishes to pursue his motion and leave is ultimately granted to file cross‑claims, further consideration can be given to whether that hearing date should be maintained, whether there will be a separate hearing, or whether it is necessary to vacate the hearing date to enable the Court to consider all issues at the same time. In any event, that can await determination at a later time.

14. In the circumstances, I make the following orders:

15. List the mater for hearing on 20 July 2026 with an estimate of 3 days.

16. The first defendant’s notice of motion filed on 22 August 2025 is adjourned to be heard on 26 February 2026 with an estimate of 3 hours.

17. The defendants are to file and serve any further notice of motion with a supporting affidavit for the joinder of any parties or any other orders they may be seeking by 5pm on 5 February 2026.

18. Any such motion is to be returnable on 26 February 2026.

19. Should the plaintiffs wish to file any motion dealing with the progress of this matter or seeking any other interlocutory orders, the plaintiffs are to file and serve any motion and affidavit in support by 5pm on Thursday 12 February 2026.

20. Any such motion is to be returnable on 26 February 2026.

21. The defendants are to serve (but not file) any defence and proposed cross-claim on which they seek to rely on the plaintiffs by 5pm on 5 February 2026.

22. The first defendant is to write to the solicitors for the plaintiffs by 5pm on 19 December 2025 indicating what documents it seeks from the plaintiffs and why.

23. The plaintiffs are to respond to that correspondence informing the first defendant whether they will provide the documents and if not, why not, by 5pm on 15 January 2026.

24. Vacate the directions hearing before the Registrar on 18 December 2025.

25. Reserve the question of costs of today.

**********