A.V. Syntec Pty Ltd v Supergrasse Pty Ltd

[1990] FCA 783

THE FEDERAL COURT OF AUSTRALIA ) No. QG74 of 1989

NSLAND DISTRICT REGISTRY

DIVISIOy

BETWEEN: A.V. SYNTEC PTY. LTD.

Applicant

AND :  SUPERGRASSE P m . LIMITED

First Respondent

AND :  L DEVLIN

Second Respondent

MINUTES OF ORDER

MAKING ORDER:  PINCUS J.
20 DECEMBER 1990

WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

l. Judgment be entered for the applicant in the sum of $170,481.75 against the first respondent.

2.   The first respondent pay the applicant's costs including reserved costs of and incidental to these proceedings to be taxed.

3. The first respondent's cross-claim against the

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

applicant be dismissed.

4.   The first respondent pay the applicant's costs of and incidental to the cross-claim, to be taxed.

THE FEDERAL COURT OF AUSTRALIA 1 No. QG74 of 1989

D DISTRICT REGISTRY 1 1

BETWEEN: A.V. SYNTEC PTY. LTD.

Applicant

AND: SUPERGRASSE PTY. LIMITED

First Respondent

AND: MICHAEL DEVLIN

Second Respondent

a:  PINCUS J.

U: BRISBANE

m:  20 DECEMBER 1990

TEMPORE REASONS FOR JUDGMENT

This is the trial of a suit which was instituted in August 1989 against two respondents, one of which disappeared from the proceedings on 17 October 1989. The suit has continued against the first respondent, which is in receivership. On 10 December 1990 Mr. A.B. Carter, who then

withdraw, and the hearing was set down for last Tuesday, 18	appeared for the remaining respondent, was given leave to
December. That date was subsequently changed to today.
The matter is proceeding ex parte, there being no appearance on behalf of the respondent. Mr. Conroy who has appeared today for the applicant has presented to me two alternative calculations for damages, based on the assumption that I will find that there is liability as alleged in the amended statement of claim. The affidavits appear to me to evidence in substance the allegations made in the statement of claim, and I find that those allegations are made out.
The calculations Mr. Conroy has put forward differ in that in particular one of the calculations takes into account an amount of $14,797 which the other does not. The $14,797 is referred to, as Mr. Conroy points out, in paragraph 12 and 13 of the affidavit of Mr. Gillman. The paragraphs to which I have referred have attempted to make an estimate of the extra supervisory costs necessary by reason of the breach. It appears to me, however, that the mere allegation that those supervisory costa are neceaeary is insufficient to justify allowing the fairly subatantial sum involved.
The work, no doubt, like much construction work was likely to go smoothly or otherwise, and I do not think that in the circumstances I should find against the respondent that it is liable for all that additional sum. The calculation which
the contract price is $172,983.75, which is admitted in the I accept, put forward by Mr. Conroy, is made up as follows:
pleadings and sworn to. The respondent paid the sum of $89,351, and in addition the applicant claims a sum of $33,606, the details of which are set out in paragraph 7 of
Mr. Gillman's affidavit, and the sum of $1,152 for the coat of
alternative tracks mentioned in paragraph 8 of Mr. Gillman's affidavit.
Those sums appear to me to he prop~rly allowable, and one has to deduct the sum of $89,351. Mr. Conroy says, and I agree, that the result is the sum of $118,390.75. As to interest, Mr. Conroy has taken the date 31 March 1987, which while not precisely accurate is certainly not unfair to the reepondent, and he has taken as the date at the other end 30 November 1990, about which the same remark might be made. He says that is three and two-thirds years.
The amount of interest which Mr. Conroy has calculated seems to me to be slightly understated. On my calculations the proper sum is a few dollars more, and I calculate it to be $52,091. Adding the $52,091 to the sum of $118,390.75 produces a sum of $170,481.75. I therefore give judgment for the applicant against the first respondent in the sum of $170,481.75. I order that the first respondent pay the applicant's costs including reserved costs to be taxed.
The first respondent has filed a cross-claim for a cross-claim will be dismissed, also with costs. sum of $56,202.75, which has not been pursued, and that I certify that this and the

two preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

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