DSE Transport Pty Ltd v Conglomeration Pty Ltd

[2021] NSWDC 251

District Court

New South Wales

Medium Neutral Citation:

DSE Transport Pty Ltd v Conglomeration Pty Ltd [2021] NSWDC 251

Hearing dates:

10 June 2021

Date of orders:

16 June 2021

Decision date:

16 June 2021

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Order:

(1)    Judgment for the plaintiff for $163,657.25.

(2)   The parties have liberty to bring in short minutes of order reflecting the mathematically agreed calculation of interest at the rate of 18.25% from 29th February 2020 to the date of judgment.

(3)   Cross-claim dismissed.

(4)   Defendant/cross-claimant pay plaintiff/cross-defendant’s costs.

(5)   Exhibits retained until further order.

Catchwords:

CONTRACT – claim for liquidated sum – cross-claim

Category:

Principal judgment

Parties:

Plaintiff:
DSE Transport Pty Ltd
Defendant:
Conglomeration Pty Ltd

Representation:

Counsel:
Plaintiff: Mr M Collins
Defendant: Mr J Wenban (Self-represented/ Director of the defendant)

Solicitors:
Plaintiff: Turks Legal

File Number(s):

2020/00163810

Judgment

The claim before the court

1. The plaintiff (“DSE”), by statement of claim filed on 2 June 2020, brings proceedings for the liquidated sum of $163,657.25. This is the total for payment of amounts owing for taxi truck services provided to the defendant between 8 February 2019 and 14 February 2020, the invoices for which remain unpaid.

2. The defendant does not challenge the validity of the contract, but disputes the quantum of the sum owed and, by a cross-claim filed on 28 July 2020, asserts that it is entitled to an unspecified sum by way of set off.

The defendant/cross-claimant’s pleadings

3. The defence as pleaded alternatively complains of failure by the plaintiff to provide information and overcharging on the invoices the subject of the claim. The defence goes on to state that the claim for the liquidated sum is “frivolous and vexatious or otherwise an abuse of process of the court”; it also refers to the issue of “causation” in paragraph 9.

4. The cross-claim appears to assert a form of variation of agreement in the form of acknowledged shortcomings by the plaintiff for which credit notes were to be applied to “all invoices”. This varied agreement is pleaded as follows:

“2 It was otherwise a term in the agreement “parties otherwise agreed” that in respect to overcharging on invoices, credit notes would be provided to the defendant, the defendant and the plaintiff agreed to varied terms of payment.

3 The defendant further says:

(a) During the period 09 August 2018 to 14 February 2020 the defendant had queries on all the issued invoices. The defendant had made an agreement with the plaintiff that invoices with queries would be rectified. The defendant had agreed to continue trading with the plaintiff and credit notes would be applied to all invoices in or around 09 August 2018 to 14 February 2020.

4 Further, the defendant says, disclosure of documents is the cause of delay in the dispute, so to affirm and bring clarity as to the validity of the claim.

5 The defendant repeats paragraphs 5 to 9 of the defence.

6 The Plaintiff has been unreasonable and delayed attempts to rectify the outstanding invoices and continued to overcharge on all invoices received by the defendant.

7 By reason of the plaintiffs breach in the agreed terms, the defendant has suffered loss and damage.”

The issues for determination

5. The issues for determination are:

1. The amount the defendant is liable to pay to the plaintiff for the services provided and identified in the invoices issued pursuant to the Agreement.

2. With respect to the defendant’s cross-claim:

1. whether the defendant and plaintiff agreed to any variation of the Agreement or entered into any further agreement with respect to amounts owing by the defendant under the Agreement; and

2. if there was any such variation or further agreement, whether the defendant is entitled to recover any debt or damages from the plaintiff.

The evidence

6. The plaintiff tendered the following material:

1. 10 volumes totalling 4103 pages of records in relation to all transactions the subject of the claim (including the relevant pleadings and correspondence).

2. A spreadsheet setting out each of the invoices for the sum claimed.

7. It is relevant to note that this vast amount of documentation was first produced to the defendant in December 2020, in response to the complaints in the defence and cross-claim that the documentation supplied was inadequate, in order to give the defendant/cross-claimant sufficient time to revise the pleadings and identify the transactions asserted to constitute overcharging or otherwise requiring adjustment. This means that the documentation the defendant/cross-claimant complains of not receiving has been in its possession for nearly six months. No revised pleading or particularisation have, however, been forthcoming.

8. The plaintiff also relied upon the evidence of its managing director, Mr Howison, who swore three affidavits dated 11 December 2020, 26 March 2021 and 10 June 2021, about which he was cross-examined.

9. The defendant was represented by Mr Wenban, the sole director of the defendant (Exhibit A, volume 1, p. 68). He swore an affidavit on 9 June 2021 which was essentially the same affidavit as that which he had provided on 11 December 2020. He did not tender any additional material on behalf of the defendant in order to identify the transactions referred to in the defence or cross-claim.

10. In the course of cross-examination, Mr Wenban gave inconsistent answers as to whether the 4103 pages of documentation produced by the plaintiff represented the whole of their written transactions, first agreeing with this proposition and then asserting that he had additional material “at home” which was relevant to the case but which he had not like to bring because it was so voluminous. For the reasons set out below, I am satisfied that all documentation for all transactions, including emails between the parties, have been made available to the court by the plaintiff, and that I should not accept Mr Wenban’s generalised intimations that there are other documents which have not been produced to the court.

The contract entered into by the parties

11. Although the terms of the contract entered into by the parties are not in dispute, it is helpful to set out extracts from its contents, as it was in the context of this contract that the parties conducted their affairs.

12. The agreement in question is set out in the following series of documents:

1. A “Customised Quotation” dated 8 February 2019 and signed by the sole director of the defendant, Mr Wenban (Exhibit A, volume 1, p. 68);

2. The attached document headed “Command logistics taxi truck rates” (which was the 2020 rates schedule); and

3. The attached DSE terms and conditions. These remained unchanged at all relevant times, according to the affidavit of 11 December 2020 of Mr Howison (at paragraph 10).

13. The relevant provisions included the following:

1. The covering letter (Exhibit A, volume 1, p. 52) thanked the defendant for the opportunity to provide pricing on transport requirements and set out the daily rates based on eight hours “as discussed”. These rates are then set out in full. A revised set of rates for 2020 was later provided.

2. The page headed “Additional Price Information” and the following section headed “Additional information” (Exhibit A, volume 1 p. 55) noted that “using our services from 2019 constitutes acceptance to all above and acceptance of our full terms and conditions displayed at [redacted website].

3. The page headed “DSE Terms and Conditions” (Exhibit A, volume 1 p. 56) included a provision at paragraph 2 that “any request by the sender to use the service of DSE constitutes acceptance of these”. Clause 8 contained provisions in relation to the handling of goods.

4. Clause 13 contained provisions as to charges and was followed by clause 14, which provided as follows:

“14. Invoicing

14.1 If the Sender has an account with DSE then, subject to clause 14.3, DSE will invoice the Sender weekly and the Sender must pay DSE the full amount of each invoice in Australian dollars within 14 days of the date of the invoice or as otherwise agreed to in the Rates Schedule.

14.2 If the Sender defaults on the payment of any money payable under these Terms and the amount remain outstanding for a period of more than 7 days then DSE may do any one or more of the following:

(a) suspend performance of its obligations under these Terms until the amount outstanding is paid in full; and

(b) charge interest on the amount outstanding at a rate of 0.05% per day, with such interest being payable on the written demand of DSE, this rate being a genuine estimate of damage suffered by DSE.

14.3 Provided that the Receiver holds a Sender account with DSE, the rates payable for any Goods where the associated Order is marked “Receiver to Pay” will be invoiced by DSE directly to the Receiver. If the Receiver does not pay the full amount of the relevant invoice by the due date, the Sender will be held liable for any unpaid amount, together with any reversal fees charged by DSE to the Sender in its absolute discretion.”

5. Clause 20 contained provisions as to the making of a claim and clause 25 contain provisions for dispute resolution, but it is not in dispute that neither of these clauses is relevant to this dispute, as relates to the amounts on the invoices, as opposed to a claim for lost or damaged goods.

The evidence of Mr Howison

14. In his affidavit of 11 December 2020, Mr Howison sets out that DSE is a transport solution provider, providing services throughout Australia which are essentially taxi truck delivery facilities.

15. DSE entered into the agreement set out in paragraphs 12 - 13 above with the defendant, trading as “Command Logistics”, and then traded with this company between 8 February 2019 and 14 February 2020, when it ceased providing services due to the failure of the defendant to pay.

16. During this period, DSE provided the following services to the defendant:

1. “Point-to-point’ services, namely the provision of drivers and trucks to a customer to transport goods or freight in between pre-booked locations.

2. Warehousing and packaging services, namely empty pallets, pallet wrapping material (such as bubble-wrap and shrink-wrap) to palletise freight and also storage services.

17. The majority of the services provided to the defendant were point-to-point services.

18. DSE and the defendant used the following procedures when a service was required by the defendant:

1. The defendant’s staff would email a booking request to the plaintiff’s staff; this was known as “the booking request”.

2. When the booking request was received, the plaintiff’s staff would check its driver and truck availability before confirming the booking by reply email. All drivers used had a special App on their mobile phones to provide data for DSE’s electronic record system.

3. Once a booking had been confirmed, the plaintiff assigned the job to a designated driver and created a job number. This was entered into the internal records of the defendant on a specially created electronic database to which the plaintiff also has access and which is known as “the platform”. All the relevant information, such as the name of the customer, the designated driver, the type of truck, the job number and the nature of the job and most importantly the time periods when the service is required, were available on this database, not only to DSE, but to the drivers and, most importantly, to the defendant.

4. On any given job, drivers were required to complete a “run sheet” containing all of the above information and, in addition, the driver’s start time, pickup location or locations, arrival and departure times, drop-off locations and finish times. This run sheet was required to be signed by the customer representative present at each pickup and drop-off location as well as by the driver.

5. When the job was completed and the plaintiff received the run sheets from the drivers, all information was checked against the start and finish times entered by the drivers on the special DSE App which, as noted above, was an independent record in the form of an App installed on the driver’s phone. Any discrepancy between the data on this App and the run sheet would then be considered. When this occurred, generally the contents of the run sheet would prevail, as these would have been independently verified by the third party (i.e. the customer) sending or receiving the height of the subject of the pickup or drop-off.

6. An invoice was then generated by the plaintiff’s accounting software and calculated in accordance with the rates set out in the quotation, following which the invoices were emailed to the defendant staff at the email address identified by them.

19. The above system enabled any person using the plaintiff’s taxi truck services to have access through the plaintiff’s online portal to delivery and pick up information at any time. This included not only driver start and finish times and pickup and drop-off locations, but also, where available, GPS tracking, as well as all past current and pending jobs, and payment status for all jobs.

20. The amounts for each of these trips, calculated as owing by the defendant to the plaintiff individually as well as in total, are set out in an Excel spreadsheet which is Exhibit B. That amount is $163,657.25. There is no issue as to the correctness of the jobs for which the defendant was invoiced; the sole issue in dispute is whether the defendant was entitled to certain credits.

21. The calculation of the sum of $163,657.25 takes into account goodwill credits totalling $558.73 given by the plaintiff to the defendant in relation to specific complaints made about overcharging in four invoices. This is relevant in terms of the cross-claim.

The four credits given to the defendant

22. Credits were provided to the defendant in relation to four complaints he made.

(a) Job AB7573 on invoice DSE-6086

23. Mr Collins’ submissions set out that this credit was calculated as follows:

“(i) The invoice (p 124 Exhibit RH-1; CB1.163) was dated 14 February 2020 and issued to Conglomeration by email at 10:54am on 17 February 2020 (CB8.2734-2735), being an invoice which contained some 14 jobs.

(ii) At 1:11pm on 17 February 2020 Teagan Chow, “Customer Service”, on behalf of Conglomeration, sent an email to DSE requesting that DSE “look into job AB7573”, being one of the 14 jobs on the invoice (CB8.2734).

(iii) Ms Chow must have had access to more information that was contained in the invoice itself, where she noted that “it took the driver 2.5 hours to get from Smithfield to Pyrmont, 1 hour to collect three items, then 2 hours to get back from Pyrmont to Villawood…”, which is consistent with DSE’s evidence that Conglomeration had access to DES’s online portal which contained various information about jobs, including driver run sheets ([18] of Mr Howison’s affidavit of 11 December 2020; CB1.36).

(iv) DSE confirmed it would audit the job (CB8.2734) and on 18 February 2020 confirmed by email (CB8.2733) that “AB7573 will be reduced”.

(v) DSE issued credit note CN-6100 dated 14 February 2020 (being the date of invoice DSE-6086) which referred to a credit for job AB7573 of $274.79 (Mr Howison’s affidavit of 10 June 2021).”

(b) Jobs AB5800, AB5801, AB6117, AB6200, AB6267, AB6319 and AB6398 on invoice DSE-5330

24. This credit was calculated as follows:

“(i) Invoice DSE-5330 was generated on 17 January 2020 (CB1.141).

(ii) On 13 February 2021 Mr Wenban sent an email to DSE (CB8.2740-2741) setting out various “issues”, including in relation to jobs on invoice DSE-5330 and:

(A) referred to the calculation of relocation charges;

(B) asked for details of “additional charges”; and

(C) noted that he had not “checked the run sheets for this invoice but I will check them overnight and let you know”.

(iii) On 24 February 2020 DSE confirmed it had “reviewed and investigated” and the “audit has revealed some issues on this occasion” and confirmed credits for jobs AB5800, AB5801, AB6117, AB6200 (CB8.2740).

(iv) DSE issued credit note CN-6513 which referred to job AB5801, AB6117, AB6200, in the amount of $77.90 (Mr Howison’s affidavit of 10 June 2021).”

(c) Job AB8863 on invoice DSE-6086, along with jobs AB8834 and 885606 (the latter two which do not form part of DSE’s claim)

25. This credit was calculated as follows:

“(i) On 13 February 2021 Mr Wenban sent an email to DSE (CB8.2740-2741) setting out various “issues”, including in relation to jobs AB8863, AB8834 and 885606 (being the same email referred to in the previous sub-paragraph of this document), and referred to:

(A) the drivers’ routes;

(B) the drivers’ start and finish times;

(C) Mr Wenban having called a driver during a run.

(ii) On 14 February 2020 invoice DSE-6086 was generated (CB1.163).

(iii) On 24 February 2020 DSE confirmed it had “reviewed and investigated” and the “audit has revealed some issues on this occasion” and confirmed a credit of $187.31 plus GST with respect to job AB8863 (CB8.2740).

(iv) DSE issued credit note CN-6512 which referred to job AB8863 in the amount of $206.04 (Mr Howison’s affidavit of 10 June 2021).”

(d) Jobs AA0054 and AA0055 (which do not form part of DSE’s claim):

26. This credit was calculated as follows:

“(i) On 13 August 2019 Mr Wenban requested that DSE provide run sheets for the jobs (CB8.2749).

(ii) on 13 August 2019 DSE provided run sheets to Mr Wenban (CB8.2749)……

(iii) on 14 August 2019 Mr Wenban requested that DSE review the GPS data for the jobs and on the same day DSE offered to deduct hours for those jobs because the driver turned off GPS (CB8.2748).

(iv) DSE agreed to reduce the hours for the jobs, and asked Mr Wenban to confirm “how many hours you would like me to deduct from these jobs” (CB8.2748).”

Cross-examination of Mr Howison

27. Mr Wenban cross-examined Mr Howison about his office procedure in terms of dealing with complaints and, in particular, as to the following transactions which are (additional to the four above, the correctness of which was accepted by both parties) where he had made a complaint on behalf of the defendant:

1. On 1 July 2019, Mr Wenban complained about job 888002, where there was a one-hour relocation charge where there was a quote for 30 minutes only. An employee in the plaintiff’s office named Teagan told Mr Wenban that he was correct, in that the time should be only 30 minutes, and that she would ask another employee “to resend the costings for this job to you” (exhibit A, volume 8, page 2746). Mr Wenban pointed out to Mr Howison that the rebate for the missing 30 minutes had never been provided. Mr Howison replied that he did not know this, but that Teagan was no longer employed in his office. No evidence was provided to me as to the sum calculated for this missing 30 minutes but, given the quantum of the other credits, it would be a trifling sum.

2. On 30 August 2019, Mr Wenban sent an email complaining that the drivers’ break times were not included on the run sheets. Mr Henley, a DSE employee, replied approximately two hours later on the same day, stating that this had been included as a default note on all the system for all of the defendants’ jobs. There is no request for any financial adjustment for these jobs in this email, or in any of Mr Wenban’s subsequent emails.

3. On 14 August 2019, Mr Wenban sent a spreadsheet setting out the hours charged based on relocation to times, adding that he had had a query that day whether the drivers were putting their phones on aeroplane mode, as it was hard to believe two drivers would finish at 3 PM. Again, no request was made for any specific financial adjustment, either in this email or subsequently.

4. On 23 January 2020, Mr Wenban complained about issues with the Friday runs, including GPS tracking which did not work, inability to contact drivers, poor telephone reception, swapping pickups and deliveries, finishing early and drivers swapping over freight but coming back short. There is a response from a DSE employee named Hans that same day, to say that he would get back to him shortly. Mr Howison was asked if Hans had ever got back to him, to which he said he did not know. I note, however, that DSE ceased trading with the defendant three weeks later.

28. Mr Wenban said that he had had a meeting with two other persons at the office of the plaintiff (although he could not identify either the date or the persons present), and that one of those persons had taken minutes of the meeting. There is no evidence that any request for a credit, as opposed to some form of generalised complaint, was the subject of this meeting, if it occurred at all, which I am not prepared to accept, given the absence of documentation as well as details of who was present and when.

29. Although there are other emails about the complaints identified by the plaintiff for which a credit was given (which are the four credits identified as (a) to (d) above), Mr Howison was only asked about jobs AA0054 and AA0055. His answers were consistent with the documentation. It was not put to him that this credit was insufficient or even wrong. As already noted, there was no challenge to the correctness of the credits set out in the other three invoices or bundles of invoices where a credit had been given.

30. This means that the only outstanding transaction that the defendant has been able to identify is an adjustment for the missing 30 minutes for job 888002. I have no information as to what this adjustment would be.

The defendant’s evidence

31. Mr Wenban gave evidence in chief by his affidavit of 9 June 2021, and was cross-examined.

32. Mr Wenban’s affidavit is of little or no assistance to the court. It does not identify any particular invoice, booking or run sheet job contained in the 10 volumes of material with respect to which the defendant challenges the calculation of the amounts charged. Nor is there any complaint with respect to any invoice which has not already been addressed by DSE above. Nor is there any calculation of the amount that the defendant admits that it owes to DSE, whether or not it is below the amount claimed in the invoice.

33. Mr Collins put to Mr Wenban that he had been served with 10 volumes of material by the plaintiff in December 2020, which consisted of all of the documentation in relation to every single unpaid invoice, and that he had had plenty of time to draw up a list of invoices where adjustments had to be made. He was asked whether there was any additional material which ought to be before the court and he initially responded that this was not the case. Mr Collins then pointed out that this meant all the relevant documentation was before the court and, if so, there was no evidence of any further credits owed. Inconsistently, Mr Wenban then went on to claim that he had approximately 25,000 pages of material at his home which he had not thought it proper to put before the court as it would be too much material for the court to take in.

34. Mr Wenban was asked how he proposed to proceed with his cross-claim if he could not put a figure on the amount of the set-off he claimed. He replied that he was still waiting for discovery from the plaintiff so that he could formulate his claim. He agreed that the quantification of any claim for set-off would be speculative. He said he had not understood the court process and was at a disadvantage because he had been unable to attend two directions hearings before the Judicial Registrar, which prevented him from raising matters before the court prior to the hearing.

Conclusions as to the evidence

35. The amount of detail available to the defendant is self-evident from the emails he sent in relation to invoices DSE6086, 5330 and other jobs which do not form part of the claim (see above). It is clear from Mr Wenban’s own emails that the defendant had ample material before it in terms of records kept by both the plaintiff and defendant, including GPS data. The defendant’s complaints that no (or no sufficient) material was available to enable Mr Wenban either to deal with the complaints he had raised at the time (each of which is set out in the summary of evidence above) and/or with the claim in these proceedings are without substance.

36. In particular, I am satisfied that Mr Wenban and his staff, on behalf of the defendant, were able to receive and review information during and shortly after jobs were completed, such as the following:

1. Calling drivers during runs (for example, CB8.2740).

2. Monitoring driver routes and GPS data (for example, CB8.2739, CB8.2740).

3. Reviewing run sheets (for example, CB8.2741).

4. Reviewing relocation times (for example, CB8.2741).

5. Reviewing additional charges (for example, CB8.2741).

6. Sending emails to DSE raising issues with invoices and other information available to it (for example, CB8.2741).

37. In his helpful submissions, Mr Collins draws to my attention the following inaccuracies as to the claims made by the defendant in submissions (I note that these complaints form no part of the pleadings and are not referred to in Mr Wenban’s affidavit):

1. That relocation time of 30 minutes was agreed: This cannot be established in light of the terms of the Agreement. The 2019 Rates Schedule (at CB1. 55) and the 2020 Rates Schedule (at CB1.74) each confirm under the heading “Additional Price Information” that relocation time was “(Min 30 mins)”, being a “minimum” of 30 minutes.

2. GPS tracking data: GPS tracking data was unreliable and not used in the calculation of amounts owing under the Agreement, but where possible it was made available, as is evident from the defendant’s own evidence (for example, CB8.2707-2717, CB8.2729).

3. Driver breaks not recorded on run sheets: DSE does not record break times on run sheets. Breaks were monitored separately, with the run sheets containing a “driver declaration” by which the driver agrees to “comply with driver fatigue legislation” (for example, CB1.195).

4. Run sheets not completed with time tasks: There are more than a hundred run sheets in DSE’s evidence, and the defendant has not identified any run sheet which is said to be relevantly incomplete.

5. Charge for driver break times: DSE charges per hour from the time of the first collection to the time of the last delivery with no adjustments for breaks. The Agreement confirms that:

1. “Carriage means the whole of the operations and services undertaken by DSE in relation to the Goods, including but is not limited to the collection, carriage, transportation, delivery and/or storage of the Goods…” (cl 1.1 of the Terms and Conditions; CB1.56);

2. The defendant authorised DSE to adopt a method of Carriage at the discretion of DSE (cl 8.1; CB1.59); and

3. DSE’s services were charged on a time basis consistent with the rates schedules (cl 13; CB1.61),

6. with the effect that DSE’s discretion as to “Carriage” includes the choice of driver, which may be a driver that is required to take a break during a job, with the effect that the time for the “Carriage” may be extended as a result of such a break, in circumstances where the costs of the Carriage are charged to the defendant on a time basis.

7. Loading and unloading times: DSE made available extensive documentation with respect to the relevant jobs, not only at the time through its electronic booking services but also in this litigation. The defendant did not point to a single document as containing errors

8. Delivery times outside of trading hours: This is an allegation made without supporting evidence or articulation of which “trading hours” and which run sheets are referred to, in circumstances where run sheets must be signed by the party from whom goods are collected and the party to whom goods are delivered – these persons are staff at the defendant’s office and/or the defendant’s customers.

9. Driver times from site to site: DSE has served extensive documentation with respect to the jobs and the defendant/ cross-claimant has not identified any disputed job.

10. Time for drivers to pick up paperwork: The defendant/cross-claimant has, again, failed to identify any run sheet with respect to which it complains.

38. In those circumstances, the absence of evidence in support of the defence and cross-claim identifying amounts claimed to be disputed and the reasons for the dispute is not a problem which can be sheeted home to DSE. DSE has produced all its records and the defendant/cross-claimant has failed to identify any evidence of substance (beyond the 30 minutes claim, which is not quantified) of credits or variations of any kind.

Conclusions concerning the defence and cross-claim

39. The defendant has not established that it is entitled to any reduction or other non-payment for any specific sum. No such list of payments was included in the defence. There is no evidence, beyond the agreed credits set out above, of any variation for the sums claimed, and the amount sought includes this figure as a setoff. DSE is accordingly entitled to the full sum claimed.

40. The cross-claim is not really a cross-claim at all, but a series of complaints about an asserted failure to provide documents which is, in my view, without substance.

41. There has not been any attempt to calculate the amount that is owed. In submissions from the bar table, Mr Wenban suggested, in oral submissions, that the amount sought in the cross-claim was $207,000, but did not enlighten the court as to how this sum was calculated. This was made more than usually difficult because he added that all the documentation in relation to this sum was “at home”. He did, however, acknowledge that any sum he arrived at as representing the defendant/cross-claimant’s setoffs would be “speculative”.

42. The cross-claim is accordingly dismissed.

Interest

43. Interest is to be calculated in accordance with the provisions in the agreement. This is to be calculated at the agreed rate of 18.25% per annum from 29 February 2020 to the date of judgment.

44. I have granted liberty to the parties to bring in short minutes of order reflecting the mathematically agreed calculation of interest, to enable the defendant to participate in this exercise.

Costs

45. The statement of claim seeks costs on an indemnity basis or alternatively on the ordinary basis. While the defence and cross-claim can fairly be characterised as hopeless, I see no reason why costs should not be ordered on the ordinary basis.

Order:

1. Judgment for the plaintiff for $163,657.25.

2. The parties have liberty to bring in short minutes of order reflecting the mathematically agreed calculation of interest at the rate of 18.25% from 29^th February 2020 to the date of judgment.

3. Cross-claim dismissed.

4. Defendant/cross-claimant pay plaintiff/cross-defendant’s costs.

5. Exhibits retained until further order.

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Decision last updated: 16 June 2021