Zeno Entertainment Pty Ltd v Kumar [2025] QSC 185

Financial Dispute Legal for the second defendant (respondent)

• [1] The plaintiff, Zeno Entertainment, alleges that the first defendant, Mr Kumar, and the second defendant, Mr Goundar, owe a debt of $833,000 under a settlement agreement purportedly entered into in July 2024. By claim filed in this Court in December 2024, Zeno Entertainment seeks to recover that debt. Zeno Entertainment also wishes to allege that Mr Kumar and Mr Goundar are liable, as guarantors, under an earlier joint venture agreement between Zeno Entertainment and Stealth Music Group Pty Ltd, and seeks to enforce an equitable charge over Mr Kumar's and Mr Goundar's assets said to have been created under that joint venture agreement. To that end, Zeno Entertainment caused caveats to be lodged over real property owned by each of Mr Kumar and Mr Goundar in January 2025, relying upon that alleged charge as the basis for its caveatable interest. Due to an "oversight" on the part of the Zeno Entertainment's solicitor, who failed to take steps to commence proceedings to establish the interest claimed under the caveats within time, the caveats lapsed under s 126(5) of the Land Title Act 1994 (Qld).
• [2] Zeno Entertainment now applies for leave to file an amended claim, in order to add a claim for declaratory relief in relation to the alleged charge, and for leave to lodge further caveats over the defendants' properties, under s 129 of the Act.
• [3] The second defendant, Mr Goundar, opposes the application. The first defendant, Mr Kumar, did not appear at the hearing. There is evidence before the Court that Mr Kumar was served with the application, but no evidence that he was aware of the hearing date of 7 August 2025.
• [4] The issues for the Court to determine are:

(a) Should leave be granted for Zeno Entertainment to file further caveats? Section 129 of the Act confers a broad discretion on the Court to decide whether to grant leave. Relevant factors are:[1]

(i) Does Zeno Entertainment have a caveatable interest in the relevant land such as to justify the caveat? This question turns on:

• (A) Whether the settlement deed superseded, in the sense of replaced, the joint venture agreement as the contract regulating legal rights and obligations between the relevant parties;
• (B) If not, whether clause 15(b) of the joint venture agreement created an immediate proprietary interest in the real property of the defendants, such as to support a further caveat;

(ii) If the grounds for lodging the caveat are arguable rather than plain, is there a serious question to be tried as to whether the applicant has a caveatable interest?

(iii) Is there an acceptable explanation for allowing the caveat to lapse?

(iv) Assuming the answer to (ii) is yes, does the balance of convenience favour granting leave to lodge further caveats?

(b) Should leave be granted for Zeno Entertainment to file the proposed amended claim and statement of claim? This question turns on the answer to question (a)(i) above.

• [5] For the following reasons, Zeno Entertainment does not have a caveatable interest in the defendants' land, arising from clause 15(b) of the joint venture agreement. Therefore, the application, for leave to lodge further caveats and to file an amended claim and statement of claim, will be dismissed.

• [6] In July 2021, a joint venture agreement was purportedly entered into between Zeno Entertainment (called the First Party), Stealth Music Group Pty Ltd (called the Second Party) and Mr Kumar and Mr Goundar (together, called the Guarantors). Mr Kumar, is the sole director of Stealth Music which (apparently) carries on the business of "organising entertainment events with celebrities, influences and media personalities". He is the son of Mr Goundar. I say "purportedly" because, on the evidence before the Court, Mr Goundar denies he entered into the joint venture agreement, says he had no knowledge of it until served with the proceedings commenced in this Court, and says that his son, Mr Kumar, forged Mr Goundar's signature on the joint venture deed. This serious allegation is supported by a letter said to have been provided by Mr Kumar in which he admits he unlawfully signed his father's name on a contract "to obtain funds for my business".[2]
• [7] For the purposes of deciding the present application, this allegation has been parked to one side, because counsel for Mr Goundar accepts that, if this was the only argument, there would be a serious question to be tried. But it is not the only argument.
• [8] The joint venture agreement contemplated that Zeno Entertainment would provide Stealth Music with an unspecified sum of money (the Principal Sum) to finance some events (clause 7, items 5 and 6 of the schedule). In return, the agreement arguably provided for repayment of that sum of money plus a profit sharing arrangement (clause 8, and item 7 of the schedule). I say "arguably" because the provisions are vague, ambiguous and unclear. No amount of money is specified as the Principal Sum. No date for payment, or repayment, of that Sum is specified. The clause dealing with profit sharing (clause 8) refers to distribution of "the Profit" according to item 7 of the schedule. It says nothing about payment of "income". "Profit" is defined in clause 1 as "Income - Expense - Principal Sum", a definition in which I infer the "-" denotes a subtraction sign. Adding to the confusion, item 7 of the schedule, which is referred to in clause 8, refers to division of "income", not profit.
• [9] There is no evidence before the Court that any amount of money was paid by Zeno Entertainment to Stealth Music under this agreement.
• [10] Zeno Entertainment relies upon clause 15 of the joint venture agreement to establish that it has a proprietary interest in Mr Kumar's and Mr Goundar's assets (namely, real property owned by each of them). Clause 15 provides:

(a) The Guarantors guarantee the First Party:

(i) the due and punctual payment of the Income;

(ii) the due observance and punctual performance by the Second Party of the secured obligations; and

(iii) any obligation owed by the Second Party (or an entity associated to the Second Party) to the First Party. To avoid doubt, an entity is associated to the Second Party where there are any shares owned by the same or related parties or where there is any common Directorship

(b) The Guarantors indemnify the First Party:

(i) against any loss of the money it may have been entitled to recover if the Second Party defaults in the due and punctual observance or performance of all or any part of its obligations under this deed for entertainment events; and

(ii) prior monies advanced or loss incurred in the previous event held by Second Party which is a liquidated debt payable immediately upon demand by First Party.

(b) The Guarantors irrevocably offer the First Party its assets as security and the First Party has the rights to register a charge or mortgage on the assets of the Guarantors.

(c) The liability of the Guarantors under this document continues and remains in full force and effect, and extends to the ultimate balance of the Secured Money and Secured Obligations outstanding at any time, irrespective of any intermediate payment, settlement of account or any other matter."[3]

• [11] The meaning of this clause generally is unclear, including because there is no obligation under the agreement to pay "Income", and no definition of "secured money" or "secured obligations". The particular clause relied upon as creating a charge over the real property of the defendants is the second sub-clause 15(b), shown in bold above. I will return to the construction of this shortly.
• [12] I infer, for the purposes of this application, that a dispute subsequently arose between, at least, Zeno Entertainment, Stealth Music and Mr Kumar. Some years later, in July 2024, the parties entered into a deed of settlement "to rectify and resolve the matters [of dispute between them]". The deed of settlement purports to be an agreement between Zeno Entertainment (First Party), Stealth Music (Second Party), Mr Kumar and Mr Goundar (the Guarantors). In so far as Mr Goundar is concerned, the same issue is raised - that he did not enter into this agreement, was not aware of it, and says his son forged his signature on it.
• [13] Putting that to one side for present purposes, the deed of settlement includes the following terms:

(a) by clause 3.1, "The Guarantors commit to repay Zeno the sum of $1,000,000".

(b) by clause 3.2, "Stealth Music Group commits to allocate 50% of profits from all side shows derived from Promiseland Events and/or related events".

(c) by clause 3.3, that Zeno Entertainment would act as "financial controller and overseer for all aforementioned events", with the details of its role in this regard set out in an annexure to the agreement.

(d) by clause 3.5, that the agreement "stands effective until 31 December 2030 unless terminated by mutual consent in writing".

(e) by an unnumbered clause, under the heading "miscellaneous provisions", that "[t]his Deed represents the full consensus between the Parties, superseding any prior agreement or understanding related to its content".

(f) under the heading "Entire Deed", by clauses 21 and 22:

"21 This Deed embodies the entire understanding and agreement between the parties as to the subject matter of this Deed.

1. 22 All previous negotiations, understandings, representations, warranties, memoranda, or commitments in relation to, or in any way affecting, the subject matter of this Deed are merged in and superseded by this Deed and are of no force or effect whatever. None of the Parties will be liable to any of the other Parties in respect of those matters."

• [14] Annexure A to the agreement included a "schedule of payments", providing for three payments to be made, in August, September and December 2024, totalling the $1,000,000 referred to in clause 3.1.
• [15] On 24 December 2024, Zeno Entertainment commenced proceedings in this Court, against Mr Kumar and Mr Goundar, claiming the sum of $840,000 as a debt due and owing under the settlement agreement.
• [16] In an affidavit filed on 13 June 2025, the solicitor for the plaintiff, Mr Siu, swore that the defendants failed to pay the plaintiff in accordance with the settlement deed and therefore breached the settlement deed.[4] In fact, Mr Kumar had paid some money to Zeno Entertainment, in August and September 2024, as is pleaded in paragraph 10 of the statement of claim filed in December 2024 by Mr Siu as the solicitor for Zeno Entertainment. According to the statement of claim, the balance owing is $833,000. There is no explanation from Mr Siu for giving sworn evidence contrary to facts he was aware of.
• [17] On 13 January 2025, Zeno Entertainment lodged caveats in respect of four properties said to be owned by Mr Goundar, and one property said to be owned by Mr Kumar. The "grounds of claim" in both caveats was:

"Pursuant to clause 15(b) in an agreement dated 16 July 2021 between the registered owner and the caveator whereby the registered owner agreed to charge all his interest in the land with payment of monies owed to caveator".

• [18] On the evidence before the Court, Mr Goundar did not become aware of the fact a caveat had been lodged over his properties until a letter was sent to his solicitor, by the plaintiff's solicitor, on 3 June 2025. It was in that letter that the plaintiff's solicitor gave notice of the current application, for leave to lodge a further caveat and to amend the claim and statement of claim.
• [19] Zeno Entertainment's solicitor, Mr Siu, did not act within time under s 126(4) of the Act, to start a proceeding to establish the interest claimed in the caveat. As already noted, the proceeding that had been started, in December 2024, only sought to recover the alleged debt owing under the settlement agreement. The caveats therefore lapsed.
• [20] The explanation given by Mr Siu, as to why he failed to commence proceedings in time, was, initially, that "the parties" were engaged in without prejudice discussions in an attempt to resolve the matter, and he was "preoccupied by the negotiations with the Defendants". As a result, he forgot about the deadline (under s 126(4)), describing it as his "own personal oversight". As to why there was no relief sought under the joint venture deed in the original claim, Mr Siu says at the time the proceeding was commenced, he had only been instructed to seek repayment of the debt owed by the defendants, he had not been instructed to file a caveat to protect the plaintiff's caveatable interest under the joint venture agreement.[5]
• [21] An affidavit of Mr Goundar's solicitor, Mr Blurton, was filed on 24 July 2025. Among other things, Mr Blurton pointed out that what Mr Siu said, about negotiations, was not correct, because Mr Goundar was never involved in any negotiations. Mr Siu then filed another affidavit, on 5 August 2025, in which he accepted that as correct, and described the "inaccuracies" in his affidavit as the "result of a drafting error" (at [16]) .

The settlement deed superseded the joint venture agreement

• [22] The principles which apply to determine whether a subsequent agreement amends an earlier agreement, or brings it to an end and replaces it, were summarised by Brown J (as her Honour then was) in Reel Action Sports Fishing Pty Ltd v Marine Engineering Consultants Pty Ltd (In Liq) (2022) 13 QR 297 at [39]. The ordinary principles of contractual construction apply, calling for consideration of the objective intention of the parties, having regard to the language used and the context of the agreement. In Reel Action, it is noted that a potentially critical factor militating in favour of a conclusion that the intention of the parties, objectively ascertained, was to bring the earlier agreement to an end and replace it, is where the terms of the two relevant agreements deal with the same subject matter in different and inconsistent ways.
• [23] Having regard to the terms of the settlement agreement, I find that it did supersede, in the sense of replacing and bringing to an end, the joint venture agreement. That conclusion is strongly supported by the fact that the settlement agreement deals substantively with essentially the same subject matter as the joint venture agreement, provides for the agreement to regulate the arrangement between the parties for a substantial term, to 31 December 2030, and expressly provides that it supersedes any prior agreement "related to its content".
• [24] Counsel for Zeno Entertainment sought to argue against this conclusion by reference to:

(a) clause 15(c) of the joint venture agreement (set out above) - on the basis that clause provides that the liability of the guarantors continues and remains in force "irrespective of ...any other matter";

(b) clause 16(h) of the joint venture agreement, which provides that the liability of the guarantors will not be affected by "the enforcement of ... any rights under any other deed"; and

(c) clause 16(i) of the joint venture agreement, which provides that the liability of the guarantors will not be affected by "anything done ... by the Lender in the exercise or non-exercise of any of its rights or powers".

• [25] In the face of the express provisions of the deed of settlement, these generic provisions do not operate to avoid the conclusion that the joint venture agreement was superseded, in the sense of being replaced and brought to an end, by the settlement agreement.
• [26] It follows from this conclusion that Zeno Entertainment cannot establish that it has a caveatable interest in either defendant's property, because the joint venture agreement no longer binds them (if it ever did, in the case of the second defendant, Mr Goundar).

Clause 15 does not create an enforceable charge

• [27] Even if the conclusion just expressed is incorrect, properly construed, clause 15 of the joint venture agreement did not create an equitable charge over the property of the defendants. For an equitable charge to come into existence, clear language indicating the parties' intention to create an immediate proprietary interest or immediate right of recourse to identifiable property is required.[6] The language of clause 15(b), read in the context of the joint venture agreement as a whole, does no such thing.
• [28] By clause 15(b), the guarantors "offer" Zeno Entertainment "its assets" as security. The clause also states that Zeno Entertainment "has the rights to register a charge". Neither of those phrases connotes a present intention to create an immediate proprietary interest or right of recourse to identifiable property. At best, the clause is a contractual provision under which the parties might agree to do something in the future.
• [29] This clause can be directly contrasted with clause 13, headed "charge", under which Stealth Music "charges in favour of the First Party [Zeno Entertainment] all of [its] real and other property in Australia as security for the Debt Amount" and "grants a security interest in favour of [Zeno Entertainment] in all of its "real and personal property ..." (clause 13(a)). Clause 13(b) included covenants by Stealth Music to do various things to enable Zeno Entertainment to enforce the charge created, including producing documents of title to enable registration of the security, and doing acts to enable a sale of property charged by the security.
• [30] Another difficulty with construing clause 15(b) in the way contended by Zeno Entertainment is the ambiguity within that clause as to what is being guaranteed (see paragraphs [10] and [11] above).
• [31] Quite separately, another hurdle for Zeno Entertainment is the fact that the joint venture agreement does not appear, in the copy annexed to Mr Siu's affidavit, to have been executed by Stealth Music. The agreement is expressed to commence on the date it is executed by the last party (clause 28). Arguably, therefore, the agreement never commenced. There is also a question as to whether Zeno Entertainment properly executed the joint venture agreement (because it is signed by only one of its directors).

• [35] In so far as the explanation for allowing the original caveats to lapse is concerned, I observe that Mr Siu's explanation is unsatisfactory. For a solicitor to give sworn evidence about a factual matter, directly within his knowledge, which is incorrect, is a serious matter - not a "drafting error". However, if all else had favoured the conclusion that Zeno Entertainment does have a caveatable interest, this alone would not have weighed heavily against the grant of leave because, although it does not reflect well on Mr Siu, it is not a fault attributable to the plaintiff itself.[8]
• [36] Given the conclusion that there is no caveatable interest, it is not necessary to address the balance of convenience. Had it been necessary to do so, the absence of an undertaking as to damages, from one or more of the directors of Zeno Entertainment, would have been a factor weighing the balance in favour of Mr Goundar. The evidence supports the conclusion that allowing the caveat to remain on the register, affecting current security arrangements and future dealings with Mr Goundar's property, would be prejudicial to him in the sense of causing him financial difficulty. In the circumstances of this case, even if I had otherwise found a caveatable interest (or at least a serious question to be tried as to an arguable caveatable interest), I would not have considered it appropriate to grant leave to lodge further caveats, leaving Mr Goundar solely to chance his luck with a claim for compensation under s 130 of the Act. An undertaking as to damages, of value, would have been required. None was offered.

The proposed amended claim and statement of claim

• [37] Consistent with the conclusion reached above, that the settlement agreement superseded the joint venture agreement, the claim in this Court currently only seeks to recover what is alleged to be a debt owing under the settlement agreement or, alternatively, damages for breach of that agreement.
• [38] The proposed amendments, to the claim and statement of claim, do not alter that. Rather, what is sought to be added is a claim for declaratory relief, relying upon clause 15 of the joint venture agreement, to the effect that the assets of the defendants have been, and remain, charged as security in favour of the plaintiff and that the plaintiff has a caveatable interest in the property owned by the defendants.
• [39] In light of the conclusions reached above, both as to the effect of the settlement agreement, and the construction of clause 15 of the joint venture agreement, it would not be appropriate to grant leave to make the proposed amendments. The parties' legal arguments about those matters have been fully ventilated in the context of the present application, and I am satisfied the plaintiff has no real prospect of succeeding on that aspect of its claim.

• [40] Counsel for the plaintiff, Ms Wilson, was left to appear on the hearing of the plaintiff's application uninstructed, because Mr Siu failed to attend court to instruct her, as he ought to have done. This caused practical difficulties, including because Ms Wilson was not able to obtain instructions, for example, in relation to whether Mr Kumar had been informed of the hearing date.
• [41] Notwithstanding that, because of the conclusions I have reached, I am satisfied it is appropriate to make the orders proposed below, despite the absence of Mr Kumar at the hearing. His interests are not adversely affected by the orders to be made.
• [42] However, I record that it is unacceptable for a solicitor on the record for a party to fail to appear at a substantive hearing, to instruct counsel, or to make arrangements for another solicitor to appear if they are unavoidably detained. The failure on the part of the instructing solicitor to attend puts counsel in a difficult position, and could result in wasted costs, if an adjournment is required, for example, to obtain instructions.

• [43] For those reasons, the plaintiff's application filed 13 June 2025 is dismissed.
• [44] The second defendant submitted if that was the conclusion reached, it would also be appropriate for the Court to direct that the Registrar of Titles remove the lapsed caveats. Although lapsed, the caveats remain on the title until removed. Section 126(7) of the Act confers a discretion on the Registrar to remove a lapsed caveat, but does not provide that the Registrar must do so. In the circumstances of this case, I accept that it is appropriate to direct the Registrar to do so.
• [45] As to costs, the parties accepted at the hearing that costs should follow the event, which means the plaintiff should pay the second defendant's costs of the application.
• [46] I will hear from the parties as to the basis on which those costs should be assessed.
• [47] The solicitor for the second defendant will be directed to provide a form of order, reflecting the orders as finally made by the Court, and incorporating the details of the lapsed caveats for the purposes of the direction to the Registrar.

[1] See Rocky Point Holdings Pty Ltd v TEB Enterprises Pty Ltd (2023) 13 QR 465 at [23]-[24] per Davis J, referring, among others, to Landlush Pty Ltd v Rutherford [2002] QSC 219; [2003] 1 Qd R 236 at [18] per Wilson J and Oversea-Chinese Banking Corporation Ltd v Becker [2003] QSC 301; [2004] 1 Qd R 409 at [18] per Chesterman J.

[2] Affidavit of Blurton, filed 24 July 2025, at page 99 of the exhibits.

[4] Affidavit of Siu, filed 13 June 2025, at [10].

[5] Affidavit of Siu, filed 13 June 2025, at [45].

[6] Roberts v Investwell Pty Ltd (in liq) [2012] NSWCA 134 at [27]- [31].

[7] Cf s 127 of the Corporations Act 2001 (Cth).

[8] See, for example, Field v Gaborit [2002] QSC 466 at p 7 per Mullins J (as her Honour then was).