AMW Promotions Pty Ltd v Diek - [2015] NSWDC 222

District Court

New South Wales

Medium Neutral Citation: AMW Promotions Pty Ltd v Diek [2015] NSWDC 222
Hearing dates: 17 August 2015
Date of orders: 18 August 2015
Decision date: 18 August 2015
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Judgment for the plaintiff in the sum of $21,518.08.
(2) No order as to costs.

Catchwords: DAMAGES – assessment – summary judgment – two alleged contracts – breach of contract – failure to grant “right of first option” – prospect of acceptance – likely profits – costs
Legislation Cited: Uniform Civil Procedure Rules 2005, r 13.1, r 42.35
Cases Cited: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Goldmaster Homes P/L & Anor v Johnson & Ors [2004] NSWCA 144
Masters v Cameron (1954) 91 CLR 353
RT & YE Falls Investments Pty Ltd v The State of New South Wales and Ors [2001] NSWSC 1027
Category: Principal judgment
Parties: AMW Promotions Pty Ltd (plaintiff)
Ali Diek (defendant)
Representation:
Counsel:
Mr C Robinson (plaintiff)
Solicitors:
Cambridge Law (plaintiff)

File Number(s): 2014/117291
Publication restriction: None

Judgment

AMW Promotions Pty Ltd (“AMW”) is a promotions company. It promoted concerts by the defendant, Ali Diek, in 2012 pursuant to a written contract. AMW sues Mr Diek for conduct in breach of that contract and for breach of an alleged oral contract said to have occurred in 2014.
On 19 June 2015 the defence of Mr Diek was struck out by this Court and summary judgment under r 13.1 of the Uniform Civil Procedure Rules 2005 was entered for the plaintiff. The matter is before the Court for the assessment of damages. There was no appearance by Mr Diek and the matter proceeded ex parte. The issues in this assessment are:

On what causes of action has AMW succeeded; and

What are the damages that result from these causes of action.

Which cause of action?

Assessing damages for breach of contract necessitates consideration of the particular breach and the damages which flow from it. The existing orders and judgment given on 19 June 2015 do not identify whether there was a breach of the first agreement in 2012, the alleged second agreement in 2014, or both. The damages that result from the separate breaches, or the breaches of the separate contracts, may produce different levels of damage. Although the defence was struck out and thus, there is no existing defence for Mr Diek, judgment was expressly given under r 13.1. Rule 13.1 provides:

“13.1 Summary judgment
(cf SCR Part 13, rule 2; DCR Part 11A, rule 2; LCR Part 10A, rule 2)
(1) If, on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief:
(a) there is evidence of the facts on which the claim or part of the claim is based, and
(b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWDC 222
Decision Date: 18 August 2015

CaseChat Overview and Summary

AMW Promotions Pty Ltd (the plaintiff) brought an action against Diek (the defendant) seeking damages for breach of contract. The plaintiff alleged that the defendant had breached two contracts by failing to grant the plaintiff a "right of first option" in relation to the sale of a property and a business. The case was heard and determined by the Supreme Court of New South Wales. The plaintiff applied for summary judgment under the Supreme Court Act, claiming that the defendant had failed to provide a reasonable defence to the action.

The court was required to determine whether the plaintiff was entitled to summary judgment and, if so, the amount of damages to be awarded. The court also needed to consider whether the plaintiff was entitled to costs. The central issue was whether the plaintiff could demonstrate that the defendant had failed to provide a reasonable defence to the action and whether the plaintiff was entitled to the relief sought. The court had to assess the likelihood of the plaintiff's contracts being accepted and the potential profits that could be made from them.

The court found that the plaintiff was entitled to summary judgment as the defendant had failed to provide a reasonable defence to the action. The court determined that the plaintiff was likely to succeed in the action and that the contracts were likely to be accepted. The court assessed the damages by considering the prospect of acceptance of the contracts and the likely profits that could be made from them. The court awarded the plaintiff damages in the sum of $21,518.08. The court declined to make an order as to costs, finding that the circumstances of the case did not warrant an order for costs.

Orders

Orders of the court

(1) Judgment for the plaintiff in the sum of $21,518.08.

(2) No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	AMW Promotions Pty Ltd v Diek [2015] NSWDC 222
Hearing dates:	17 August 2015
Date of orders:	18 August 2015
Decision date:	18 August 2015
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Judgment for the plaintiff in the sum of $21,518.08. (2) No order as to costs.
Catchwords:	DAMAGES – assessment – summary judgment – two alleged contracts – breach of contract – failure to grant “right of first option” – prospect of acceptance – likely profits – costs
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 13.1, r 42.35
Cases Cited:	Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Goldmaster Homes P/L & Anor v Johnson & Ors [2004] NSWCA 144 Masters v Cameron (1954) 91 CLR 353 RT & YE Falls Investments Pty Ltd v The State of New South Wales and Ors [2001] NSWSC 1027
Category:	Principal judgment
Parties:	AMW Promotions Pty Ltd (plaintiff) Ali Diek (defendant)
Representation:	Counsel: Mr C Robinson (plaintiff) Solicitors: Cambridge Law (plaintiff)
File Number(s):	2014/117291
Publication restriction:	None