Race Driver Management P/L v Team Dynamik P/L
[2005] SADC 74
•5 July 2005
District Court of South Australia
(Civil)
RACE DRIVER MANAGEMENT P/L v TEAM DYNAMIK P/L
Judgment of His Honour Judge Smith (ex tempore)
5 July 2005
PROCEDURE - JUDGMENTS AND ORDERS
Action to recover debt pursuant to contract - defendant failed to appear at trial - amounts claimed, debts and/or liquidated sums - judgment entered in favour of plaintiff against defendant in default of appearance - discussion of debts and liquidated sums - counterclaim dismissed - judgment for plaintiff on claims together with costs.
District Court Act s39, referred to.
Industrial Mutual Liability Pty Ltd & Ors v International Vineyards Pty Ltd (No 1) [2005] SASC 153; Re Ahearn; Ex parte Palmer (1906) 6 SR (NSW) 576, considered.
RACE DRIVER MANAGEMENT P/L v TEAM DYNAMIK P/L
[2005] SADC 74
In this matter the plaintiff claims against the defendant pursuant to a service contract in writing dated the 30th July 2003. In particular, the plaintiff claims as follows:
·firstly, $34,374.99 being fees due to it under the contract for the months of October, November and December 2003;
·secondly, $3,579.45 being 2.5% of gross merchandising sales for the year ending 31/12/03 as per the agreement; and
·thirdly, $3,750.00 being 2.5% of gross Supporters Club Sales for the year ending 31/12/03 as per the agreement.
Upon this matter coming on for trial, the defendant corporation failed to appear and moreover it failed to answer a subpoena served upon it to produce documents today.
Rather, Mr Andrew Garrett attended and sought leave to appear on behalf of the company pursuant to, inter alia, Rule 37.11 of the District Court Rules and he foreshadowed, if granted leave, an application to adjourn the trial for “a week or so”. The plaintiff’s counsel opposed the dual applications.
After some argument and the referral of the Court to Industrial Mutual Liability Pty Ltd & Ors v International Vineyards Pty Ltd (No 1) [2005] SASC 153, Mr Garrett withdrew his application and left the courtroom. I indicate that had he not done so and subject to any further arguments from him I would have dismissed the application for the same reasons as His Honour Judge Lunn did in the above case.
The defendant corporation was called but did not appear and the action then proceeded pursuant to Rule 75.14 of the Rules.
The plaintiff company adduced evidence in support of the pleaded case against the defendant mainly as to the means of calculating the sums owing.
I turn to the first aspect of the claim. The sum of $34,374.99 was a debt owing to the company for outstanding monthly payments due under Item 8 of contract and remained unpaid despite demand.
The plaintiff is entitled to judgment in default of appearance for that sum.
The following two sums claimed by the plaintiff are not precisely calculated in the pleadings. Nonetheless, I regard them as debts or liquidated sums because they are a specific sums of money the amount of which is ascertained or capable of being ascertained by a mere calculation (see Re Ahearn; Ex parte Palmer (1906) 6 SR (NSW) 576).
Secondly, the plaintiff claims 2.5% of the gross merchandise sales for the year ending 31/12/03. Mr Jason Richards, of the plaintiff corporation, said in evidence that Ms Susan Wills, a part owner and wife of a director of the defendant company, was in charge of the sales of merchandise at the various race venues, and told him that the sales totalled about $150,000.
I will return to the cogency of this evidence in a moment.
In my view, this claim is properly regarded as a debt under the contract. It is pleaded as such and again the defendant company failed to pay it notwithstanding a demand made of it on the 3rd February 2004. If I am wrong in characterising this as a debt, it is certainly a liquidated sum pursuant to the contract and would be claimable in the same way.
I am of the view that what Ms Susan Wills’ said as to the quantum of the sales is binding on the defendant company. It was within her authority as the person in charge of merchandising. It was part of her business to know the sales figures. It was information which Mr Jason Richards of the plaintiff corporation was entitled to elicit from her.
Accordingly, the plaintiff’s judgment will include that sum, namely 2.5% of $150,000, namely $3,750.00.
I turn to the final aspect of the claim, namely the entitlement to 2.5% of the Fan Club membership fees, which I accept from the documents tendered totalled $143,178. I infer from Mr Richards’ evidence that Team Dynamik Supporters Club Sales refers to the membership fees. As was the case with the merchandise sales, I regard this as a debt owing under the contract and unpaid despite demand. As indicated, the membership schedule tendered together with Mr Richards’ evidence establishes the level of fees for the relevant period at the said $143,178.
The plaintiff is entitled under the contract to 2.5% of the above sum, namely $3,579.45. The judgment in default of appearance will include that sum.
In summary, the plaintiff is entitled to judgment in default of appearance against the defendant in the sum of:
$34,374.99
$3,579.45$3,750.00
Total $41,704.44
The defendant’s counterclaim is dismissed and therefore there will be judgment for the plaintiff on the counterclaim. The plaintiff is to have costs of the judgment on the counterclaim.
The plaintiff is entitled to pre-judgment interest on the judgment pursuant to s39 of the District Court Act. There is no reason why the interest should not run from say, the date when the contract was terminated, namely January 2004, when the combined liability to pay arose. The rate of interest can conveniently be found in the Third Schedule of the Supreme Court Rules and I fix it at 6.5%. So, I fix interest at (41,704.44 x 1 ½ x 6.5%), namely $4,066.18.
Thus the plaintiff will have judgment against the defendant on the claim for $41,704.44 plus interest of $4,066.18.
The defendant is to pay the plaintiff’s costs on an indemnity basis to be agreed or taxed.
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