C a and L Bell Commodities Corporation Pty Ltd v Burnell Pty Ltd

[2003] VSC 220

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4500 of 2002

C.A. & L. BELL COMMODITIES CORPORATION PTY LTD	Plaintiffs
v
BURNELL PTY LTD and WARREN RAYMOND LUM	First Defendant Second Defendant

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2003
DATE OF JUDGMENT:	26 May 2003
CASE MAY BE CITED AS:	Bell Commodities Corpn. P/L v Burnell Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2003] VSC 220

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr I. Jones	Holding Redlich

HIS HONOUR:

1. By proceedings filed in this court on 20 February 2002, C.A. and L. Bell Commodities Corporation Pty. Ltd. seeks relief against Burnell Pty. Ltd. and Mr W.R. Lum.  The plaintiff is a corporation carrying on business as a futures and options broker, dealing in futures and options contracts on local and international futures and options markets.  The first defendant is a corporation and the second individual is the sole director, secretary and shareholder in the first defendant.

1. On 11 September 2000, Bell and Burnell made an agreement, the Client Account Agreement, whereby Bell agreed to open and operate an account for Burnell with Bell in relation to the trading of futures and options contracts and Burnell appointed Bell as its agent for that purpose.  The second defendant executed a personal guarantee of that date, also the subject of these proceedings.  Under the Client Account Agreement Burnell appointed Bell as its agent for the purposes of dealing in futures contracts in accordance with that Agreement.  Under Clause 3.13 which appears at 208 of the Court book, a notice appropriately signed by Bell and its officers stating the amount of moneys due and payable by Burnell, shall be prima facie evidence of it. 

1. As contemplated by the Agreement, the parties proceeded in their commercial dealings.  Unfortunately for the defendants, the dealings were not financially efficacious and as a consequence, by 31 October 2001, Burnell was indebted to Bell pursuant to the Client Account Agreement in the sum of a little over $170,000, together with interest as agreed.  By notice dated 26 November 2001 Bell demanded that Burnell pay to it $170,000 together with interest at the specified rate.  Burnell has failed to pay in accordance with that notice.  Bell made a like demand on 26 November 2001 of Mr Lum pursuant to the personal guarantee. 

1. The proceedings, as I say, were filed in this Court on 20 February 2002.  The proceedings are unopposed before this Court.

1. Mr L.M. Bell, who has given evidence before me, has produced the account opening documents including the personal guarantee that I have referred to, which in photocopy form appears at p.214 of the Court book.  The computerised accounts for the period 5 October 2000 and 30 September 2001 in copy form appear at 152 to 200 of the Court book.  The Clause 3.13 notice and the computer certificates as to the amount due and payable as at 25 September 2001 pursuant to s.55 B(4) Evidence Act 1958 have been produced.  Mr Koroneos, of Holding Redlich, also has given evidence and has produced and adopted an outline of evidence with attachments.  The demand and appropriate formal evidence of the base rate of the NAB at the relevant dates and changes, 17 September 2001 and 13 May and 10 June 2002, have been tendered. 

1. As a consequence of that material, most helpfully and efficiently assembled and presented by Mr Jones of counsel, I am satisfied that the defendants, and each of them, are indebted to the plaintiff to the sum of $169,661.83, with interest of $41,967.37, making a total amount of $211,629.20.

1. I order that the defendants or either of them pay that sum to the plaintiff.  I order that the costs of the proceedings including reserved costs of the plaintiff be paid by the defendants.