Ghale Harvesting Pty Ltd v Skein

[2021] NSWDC 190

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ghale Harvesting Pty Ltd v Skein [2021] NSWDC 190

Hearing dates:

4 May 2021

Date of orders:

4 May 2021

Decision date:

04 May 2021

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Verdict and judgment for the plaintiff against the defendant for $71,752.50.

Verdict and judgment for the cross-claimant against the cross-defendant for $15,159.90.

Catchwords:

Debt and cross-claim – Debt partially admitted by defendant – Cross-claim for unpaid rent and property damage – No appearance by plaintiff – Judgment given on pleadings.

Legislation Cited:

Uniform Civil Procedure Rules 2005

Category:

Principal judgment

Parties:

Plaintiff – Ghale Harvesting Pty Ltd
Defendant – Matthew Skein

Representation:

Plaintiff – S. Finch (Creaghe Lisle Solicitors)
Defendant – R. Collins (Commins Hendriks)

File Number(s):

2020/00216131

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: These proceedings are listed for hearing in these sittings. It is the second matter in the hearing list. When I called the list over on Monday there was no appearance by or on behalf of the plaintiff. The plaintiff's solicitor I am advised is running his practice from Cairns in the State of Queensland and has ignored his primary obligation of attending Court to represent his client. Under UCPR 29.7(4) if the defendant appears but the plaintiff does not appear the Court may dismiss the proceedings. However I have elected not to do so for these reasons. The statement of claim in fact claims a discrete amount, namely $295,681.10 essentially on accounts stated. The defendant filed a defence on 2 September 2020 and an amended defence on 19 January 2021. According to the amended defence the defendant admitted that he was initially indebted to the plaintiff in the sum of $295,681.09. The defendant also admitted that it had paid to the plaintiff $223,928.60. There remained outstanding the sum of $71,752.50. Therefore the extent of that debt owed by the defendant to the plaintiff has been admitted by the pleadings.

2. The defendant also filed a cross-claim. That cross-claim made a claim by the defendant against the plaintiff for unpaid rental of $13,200 and the sum of $1,959.90 for damage done to the premises rented to the plaintiff by the defendant for the accommodation of the defendant's staff. There was a defence filed to the cross-claim by the plaintiff on 7 April 2021. For want of a failure to appear and defend, the defence to the cross-claim is struck out. On the claim made by the plaintiff and the counterclaim made by the defendant, the debt is reduced from $71,752.50 to $56,592.60 once one deducts the claims made in the cross-claim.

3. The plaintiff also claimed interest. According to both the defence and the amended defence, there was an oral agreement that the plaintiff would allow the defendant some four to six weeks to pay the outstanding amount. That oral agreement was reached on 27 June 2020. However, within four weeks of 27 June 2020 the plaintiff filed the statement of claim. I am told by the solicitor for the defendant that attempts to pay the outstanding amount to the plaintiff, were thwarted by being ignored or overlooked by the plaintiff's solicitor, and by his not cooperating in any way with the defendant's solicitor. In the circumstances the plaintiff should be seen as having waived its right to interest.

4. For those reasons I give verdict and judgment for the plaintiff against the defendant for $71,752.50. I give verdict and judgment for the cross-claimant against the cross-defendant for $15,159.90. The net sum payable to the plaintiff is therefore $56,592.60. I will hear the defendant's solicitor on the question of costs.

[Submissions]

5. I order the plaintiff to pay the defendant's costs of the action incurred since 9 September 2020, being one week after the defendant sent correspondence to the plaintiff's solicitor requesting that particulars be provided for the defendants to pay to the plaintiff the outstanding debt. I order the cross-defendant to pay the cross-claimant's costs.

6. I direct the Registrar to forward to the Legal Services Commissioner a copy of my reasons for judgment.

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Amendments

21 May 2021 - Typographical error amended in [3]

Decision last updated: 21 May 2021