Roadhound Electronics Pty Ltd No 2 v Cheihk

[2006] NSWDC 145

CITATION:	Roadhound Electronics Pty Ltd No 2 v Cheihk [2006] NSWDC 145
HEARING DATE(S):	27 & 30 November 2006
EX TEMPORE JUDGMENT DATE:	11/30/2006
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. I find that the demand for the amount claimed was duly made and the proceedings are properly constituted. 2. There will be a verdict and judgment in the amount of $564,902.10 comprising the sum of $271,587.55 as the amount owing in respect of the telephone purchases and $293,314.55 in respect of the service fee. 3. Defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed on an ordinary basis.
CATCHWORDS:	Guarantee of trading account - Notice of Demand as precondition to recovery of action
PARTIES:	Roadhound Electronics Pty Limited Anthony Cheihk
FILE NUMBER(S):	Newcastle 1124/01
SOLICITORS:	Plaintiff - Turnbull Hill Lawyers Defendant - Edwin Davey Commercial & Litigation Lawyers

JUDGMENT

HER HONOUR

1 In this matter reasons for judgment on a preliminary basis were delivered on 28 November 2006 and the matter adjourned to today’s date for further discussion.

2 The issues which arose out of the original reasons for judgment were:

1. Whether the parties wished to make further submissions in respect of service of the notice of demand, and

2. The recalculation of the amount claimed, having regard to the finding that the credit agreement did not provide for compounding of the amount provided for in the credit agreement for a service fee.

3 On the question of service of the notice of demand, it appeared to me on reading the guarantee and indemnity, that the notice of demand had been served in accordance with its terms, notwithstanding that the defendant claimed that he had not received the document.

4 This was not an issue that was argued at the hearing of the action and I allowed the parties further time to consider whether submissions were to be made on that issue.

5 I am informed this morning that the defendant does not wish to put further submissions to the court and accordingly I find that demand for the amount claimed was duly made and the proceedings are properly constituted.

6 Having regard to the recalculation that has been provided to me this morning, the orders are follows:

1. There will be verdict in judgment for the plaintiff in the sum of $564,902.10, comprising the sum of $271,587.55 as the amount owing in respect of telephone purchases and $293,314.55 in respect of the service fee.

2. The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed on an ordinary basis.

3. Exhibits may be returned.

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