Abichandani v Willatt

District Court

New South Wales

Medium Neutral Citation:	Abichandani v Willatt [2018] NSWDC 150
Hearing dates:	22 May 2018
Date of orders:	22 May 2018
Decision date:	22 May 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendants called outside court 13D three times at 12.15pm and 12.20pm, no appearance. (2) Grant leave to the plaintiff to file a Notice of Motion for default judgment against the first defendant in court returnable instanter upon the undertaking of the plaintiff’s solicitor to pay the filing fee in 7 days. (3) Direct entry of judgment against first defendant (note judgment already entered against second defendant), with damages to be assessed forthwith. (4) Judgment for the plaintiff against the defendants in the sum of $345,084.38 plus interest of $5,043.90, making a total of $350,128.28. (5) Defendants pay plaintiff’s costs on the ordinary basis. (6) Exhibits retained until further order.
Catchwords:	CONTRACT – breach of contract – claim for damages for remedial building work and loss of income – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law Environmental Planning and Assessment Act 1979 (NSW) Fair Trading Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 29.7
Cases Cited:	Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
Category:	Procedural and other rulings
Parties:	Plaintiff: Manoj Kumar Abichandani First Defendant: Grant Willatt Second Defendant: Altura Construction Pty Ltd
Representation:	Counsel: Plaintiff: Mr M Klooster Defendants: No appearance   Solicitors: Plaintiff: Unified Lawyers Defendants: No appearance
File Number(s):	2018/51056
Publication restriction:	None

Judgment

1. The plaintiff, by statement of claim filed on 15 February 2018, seeks damages under the general law or the Australian Consumer Law as contained in Sch 2 of the Competition and Consumer Act 2010 (Cth) and Fair Trading Act 1987 (NSW) as against the first and second defendants. The sum now claimed has been quantified at 345,084.38 as against both defendants, together with interest calculated up to today at $5,043.90. The plaintiff also seeks an order for costs on the ordinary basis.

2. The evidence in question consists of the following:

1. the affidavit of Mark Machaalani, sworn 21 May 2018;

2. the affidavit of Manoj Abichandani, sworn 21 May 2018, together with a series of exhibits.

3. There is also a notice of motion, returnable instanter, the contents of which I will briefly set out, and a schedule of interest prepared for my assistance.

4. The defendants were called outside the Court three times and have not appeared. This means that this hearing must proceed in accordance with r 29.7 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), which sets out the procedure to be followed if a party is absent. In those circumstances, the Court may proceed with the trial generally and may finalise the entire claim as long as certain important criteria have been satisfied.

5. The first of these is that a party is relevantly absent…