Delmo Pty Limited v Sterling Estates (SA) Pty Limited

[2006] NSWSC 291

CITATION:	Delmo Pty Limited v Sterling Estates (SA) Pty Limited [2006] NSWSC 291
HEARING DATE(S):	12 April 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
EX TEMPORE JUDGMENT DATE:	04/12/2006
DECISION:	Judgment for the Plaintiff
CATCHWORDS:	CONTRACT - DEBT - NO APPEARANCE OF DEFENDANT TO SUBSTANTIATE PLEADING - NO SPECIAL POINT OF PRINCIPLE
PARTIES:	Delmo Pty Limited v Sterling Estates (SA) Pty Limited
FILE NUMBER(S):	SC 10256/05
COUNSEL:	S. Wawn, solicitor (Plaintiff) No appearance (Defendant)
SOLICITORS:	Stephen Wawn & Associates (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Wednesday 12 April 2006

10256/05 - DELMO PTY LIMITED v STERLING ESTATES (SA) PTY LIMITED

JUDGMENT

1 HIS HONOUR: In this action, the plaintiff sues the defendant effectively for fees said to be owing under variations of agreement described in the statement of claim as damages for breach of contract in the sum of $868,000.

2 The claim arises out of an agreement between the parties whereby the plaintiff was to provide services in respect of the development consent for a major proposed undertaking on the Sydney Children's Hospital site. The statement of claim was issued on 25 January 2005. In response, a solicitor has appeared for the defendant and filed a defence bearing date 21 July 2005. Solicitors have since filed a notice of ceasing to act for the defendant, the notice being filed in Court under date 8 December 2005.

3 The matter was listed for call-up and fixture of a date before the list judge on 9 December 2005. On that day, there was no appearance on behalf of the defendant and the list judge, Hislop J directed the plaintiff to notify the defendant of the hearing which was fixed for today.

4 I am satisfied from the evidence of Mr Wawn that the defendant was notified of the hearing. There has been no appearance of the defendant either when the matter was called over earlier this morning before a Registrar or shortly after 2pm when the matter was listed before me.

5 The defence filed on behalf of the defendant admits paragraphs 1 to 7 of the statement of claim inclusive. It is unnecessary in my view for present purpose to restate the contents of the statement of claim. It sets out the agreement made and certain variations thereto from time to time. The agreements were in writing.

6 The defendant by its defence denied in particular what is described in the statement of claim as the second variations of the agreement between the parties which was evidenced by a letter dated 18 December 2003. That letter is exhibited to the affidavit of the managing director of the plaintiff, Mr Jose De La Vega. It can be seen that the content of the letter as dispatched by the plaintiff was consistent with its pleading but inconsistent with assertions set out in paragraph 12 of the defence to the effect that the amount claimed by the plaintiff would not become due until certain adjudication was made by a person who is identified as a financial officer in the defendant's corporation.

7 I observe there is endorsed upon the letter exhibited to Mr De La Vega's affidavit, what appears to be a handwritten note which on one view may be consistent, in part at least, with what is asserted by the defendant but it is to be observed that that endorsement does not emanate from the plaintiff.

8 The defendant has not appeared to support the denials which it has made in its pleading nor has it appeared to support the proposition that it is not prepared to admit other parts of the pleading. The evidence in the affidavit of Mr De La Vega demonstrates that he has fulfilled his obligations pursuant to the agreement and it follows that the company its entitled to the specified sum. That amounts to a balance of $868,000, a previous part payment having been made by the defendant to the plaintiff.

9 A calculation of interest pursuant to section 64 of the Supreme Court Act has been made and for present purposes I accept that it can be calculated at $94,384.77. Accordingly, the plaintiff is entitled to judgment for the combined sums of the outstanding debts under the agreement and the interest.

10 I direct entry of judgment for the plaintiff for $962,384.77. I order the defendant to pay the plaintiff’s costs of the action. The judgment may be entered forthwith.

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