ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-421128
DATE: 20120402
BETWEEN:
WYNN LAS VEGAS, LLC
Plaintiff
– and –
CHANG-HUNG TENG a.k.a. TENNY CHANG-HUNG TENG a.k.a. TENNY CHANG HUNG TENG a.k.a. TENG CHANG HUNG TENNY a.k.a. TENNY CHANGHUNG TENG
Defendant
Sara Hickey and Scott Venton, for the Plaintiff
Pandora Du, for the Defendant
HEARD: March 15, 2012
B. P. O’Marra J.
reasons for decision
Background
[1] The Defendant Teng resides in Ontario. The Plaintiff operates a hotel and casino in Las Vegas, Nevada. Teng applied for and was granted a line of credit from the casino totalling $300,000. In June and July of 2010 Teng drew on this line of credit for the full amount of $300,000 and signed two markers in the form of cheques for that amount. When Teng checked out of the Plaintiff’s hotel in August of 2010 he had not repaid the $300,000. The amount now owing is $290,000 plus interest.
Issues
[2] Is Ontario the appropriate forum for this application?
[3] Is the Plaintiff entitled to summary judgment for the outstanding principal plus interest?
Facts
[4] On March 30, 2010 Teng faxed the casino a credit application dated March 29, 2010 seeking a line of credit of $300,000.
[5] On June 28, 2010 Teng checked in at the hotel and casino and signed a Credit Agreement whereby the casino agreed to extend the $300,000 line of credit.
[6] The Credit Agreement included the following terms:
Teng could draw on the line of credit by signing a marker in the form of a cheque, for the amount of money borrowed.
Teng would pay 18% per annum interest on outstanding amounts from the date he signed each marker until the marker was paid in full.
Teng would pay all costs incurred to collect amounts owed including legal fees.
[7] Teng has entered similar credit arrangements with other casinos in Nevada, including Caesar’s Palace and Bellagio.
[8] Teng drew on the credit line by signing markers in the amount of $200,000 (June 29, 2010) and $100,000 (July 10, 2010).
[9] Teng checked out of the Plaintiff’s hotel on August 12, 2010 and was then indebted to the casino in the amount of $300,000.
[10] In September of 2010 Nicky Chiu, Vice President of the casino, spoke to Teng who said he would be returning to play in an upcoming tournament at the casino and would repay the debt in full at that time. Teng also said that if he did not attend the tournament he would make full payment by the second week of October 2010.
[11] Emails were exchanged between Chiu and Teng in November and December of 2010. Chiu advised Teng that the $300,000 was overdue and if they did not hear from him the cheques would be deposited. Teng replied as follows:
apologized for the late reply;
going through a very tough time financially;
trying to come up with the funds (including borrowing) to cover what he owes; and
asked for more time (from November 4, 2010) before cheques are deposited.
[12] In December 2010 Chiu advised that the cheques would have to be deposited unless arrangements were made. Chiu suggested perhaps a payment plan with monthly instalments. Teng responded that his financial situation was “worse and worse since their last email and it seems impossible for me to ever afford monthly instalments at present time. I wish I could fulfill my obligations with Winn … but I’ll be lying if I tell you I can and drag along.”
[13] On December 23, 2010 Teng’s two cheques were presented for payment. Both were returned by the bank and marked “closed account.”
[14] The casino has credited Teng with $10,000 which he deposited as front money. The balance of the debt remaining is $290,000 plus interest and costs.
Appropriate Forum and Law to be Applied
[15] The Defendant submits that the more appropriate forum for this case would be Nevada based on the following:
the incident occurred there; and
all witnesses are located there.
[16] The fact that this action could also have been brought in Nevada does not mean that it cannot proceed in Ontario.
[17] Teng resides, works and has assets in Ontario. The dishonoured cheques were to be drawn from his Ontario bank. The credit application for the debt was faxed from Ontario and included details as to his residence, business and bank information here.
[18] The Credit Agreement provided that the casino may litigate any dispute relating to the credit/debt in any court, state or federal, within or outside Nevada. While such a provision standing alone cannot confer jurisdiction it shows the parties foresaw and agreed that potential litigation could be outside Nevada.
[19] By filing a Notice of Intent to Defend and a Statement of Defence the Defendant attorned to the jurisdiction of the Ontario Courts. The Defendant did not challenge the jurisdiction of Ontario courts in his pleadings.
Wood v. Sharp, 2006 15912 (ONSC) (Dececmber 15, 2011) at para. 8.
[20] The casino concedes that the law to be applied is Ontario law since foreign law is treated as a fact that must be proven and no evidence has been tendered regarding Nevada law.
Sun Hunk Kai Investment Services Ltd. v. Sung, [2005] O.J. No. 5761 (O.S.C.) para. 21.
Is there a genuine issue requiring a trial?
[21] Teng swore to an affidavit as follows:
He denied faxing the Credit Application in March of 2010.
He admits flying to Las Vegas and staying at the Plaintiff’s hotel from June 17 to a date in August of 2010 when he returned to Toronto.
He “started” gambling with his own money, being $20,000 cash.
While playing at the casino he was offered free alcoholic drinks. He consumed alcohol to excess and does not remember what he did while drunk.
He does not remember drawing on the line of credit.
After he returned to Toronto he was shocked to hear that he authorized transactions totalling $300,000.
He denies he ever agreed to make full payment on the debt.
He does not know why his bank account closed.
[22] Teng submits that there are genuine issues requiring a trial based on the following:
His denial of signing the documents filed by the casino; and
Whether he was drunk when he signed the documents in Nevada
[23] On such an application the Court may exercise certain powers unless it is in the interest of justice for such powers to be exercised only at trial:
(1) Weighing the evidence
(2) Evaluating the credibility of a deponent
(3) Drawing any reasonable inference from the evidence
Rule 20.04(2)(a) and (b)
[24] The parties on such a motion must put their best foot forward and the Court is entitled to assume there is a complete evidentiary record.
Combined Air Mechanical Services Inc. v. Flesh, 2011 ONCA 764 at para. 56.
[25] The Defendant did not raise a denial or lack of memory of the debt incurred between August and December of 2010. During that time period he communicated with the Plaintiff with a view to repaying the debt.
[26] The affidavit of Nicky Chiu includes references to his conversation with Teng in September of 2010. He relates that Teng planned to return for an upcoming tournament at the casino/hotel and would make full payment of the debt.
[27] In an email exchange between Chiu and Teng on November 4, 2010 they refer to each other by first names and the specific outstanding debt of $300,000 is mentioned.
[28] The two cheques totalling $300,000 display Teng’s name and include his quite distinct signature that looks the same as on the Credit Agreement as well as his affidavit sworn October 31, 2011.
[29] The Defendant essentially asserts that he did not sign or authorize the debt but further that he has no memory of the events due to intoxication.
[30] Based on the evidence on this motion I find there is no genuine issue requiring a trial as to whether Teng incurred the debt and drew on the line of credit to the full amount. It is only after a claim had been issued that he asserted a denial or lack of memory of the critical events.
[31] Counsel for Teng raised another issue related to Section 29(3) of the Regulations to the Gaming Control Act. That section sets out procedures to be followed by casinos in extending credit to players. Counsel were unable to find any provision of that Act or regulations that would nullify or relieve a debtor of his obligation to repay a loan. It is doubtful whether those regulations would apply to credit extended to an Ontario resident from Nevada casino in any event.
Result
[32] This Application was properly commenced in Ontario.
[33] Judgment in favour of Plaintiff in the amount of USD $290,000, together with prejudgment interest at the rate of 18% in accordance with the Credit Agreement plus post judgment interest at the rate of 18%
[34] Costs on a partial indemnity scale are set at $7,900 all inclusive.
B. P. O’Marra J.
Released: April 2, 2012
COURT FILE NO.: CV-11-421128
DATE: 20120402
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
WYNN LAS VEGAS, LLS
Plaintiff
– and –
CHANG-HUNG TENG a.k.a. TENNY CHANG-HUNG TENG a.k.a. TENNY CHANG HUNG TENG a.k.a. TENG CHANG HUNG TENNY a.k.a. TENNY CHANGHUNG TENG
Defendant
REASONS FOR DECISION
B. P. O’Marra J.
Released: April 2, 2012