Stillwell Trucks Pty Ltd v Williams - [2018] NSWDC 38

District Court

New South Wales

Medium Neutral Citation: Stillwell Trucks Pty Ltd v Williams [2018] NSWDC 38
Hearing dates: 20 February 2018
Date of orders: 20 February 2018
Decision date: 20 February 2018
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Defendant called outside Court 13D three times at 10:10am – No appearance.
(2) Judgment for the plaintiff for the sum of $162,879.71 inclusive of interest.
(3) Pursuant to s 98 Civil Procedure Act 2005 (NSW), the defendant is to pay the plaintiff’s costs of $9,487.69 on a gross sum basis.
(4) Direct the Registrar to provide a copy of this judgment to the Commissioner of Police.
(5) Exhibits retained for 28 days.
(6) Plaintiff is to notify the defendant of these orders.

Catchwords: CONTRACT – breach of contract – plaintiff brings proceedings against former employee following the discovery of a system of fraudulent claims for items purchased by customers which were neither purchased nor delivered to them – COSTS – application for gross sum costs order – whether a “rule of thumb” deduction should be made having regard to the smallness of the sum sought – gross sum costs order made accordingly
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98 and 100
Uniform Civil Procedure Rules 2005 (NSW), r 30.1
Cases Cited: Aesthete No 3 Pty Limited ACN 127 464 966 v Gilmore Finance Pty Limited ACN 104 792 627 [2018] NSWDC 1
Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863
Harrison v Schipp (2002) 54 NSWLR 738
Palladium Consulting Pty Ltd [2013] NSWSC 92
Prime Marble and Granite Pty Ltd ACN 077 393 938 v Mehajer [2017] NSWDC 273
Rafidi v Commonwealth Bank of Australia [2017] NSWCA 96
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
Star Diamond v Diamond (No 4) [2013] NSWCA 811
Wilkie v Brown [2016] NSWCA 128
Category: Principal judgment
Parties: Plaintiff: Stillwell Trucks Pty Ltd
Defendant: Angus Williams
Representation:
Counsel:
Plaintiff: Mr N J Maley (solicitor)
Defendant: No appearance
Solicitors:
Plaintiff: Gilchrist Connell
Defendant: No appearance

File Number(s): 2017/164806
Publication restriction: None

Judgment

The plaintiff, by statement of claim, filed on 1 June 2017, seeks damages of $127,808.14 for breach of contract, interest pursuant to s 100 Civil Procedure Act2005 (NSW), and costs for losses incurred to the plaintiff’s business by reason of the fraudulent activities of its employee, the defendant.
The circumstances in which the defendant is asserted to have breached his contract of employment were as follows. Having first commenced work at the plaintiff’s office on 28 February 2002, he was promoted to sales manager on 15 September 2008, where he was given a degree of responsibility and autonomy which he proceeded, from some time in about 2011, to take flagrant advantage of.
In the course of his employment, as is set out in paragraphs 3 to 8, he converted or wrongly used, or otherwise failed to return property and money belonging to the plaintiff, in a scheme the details of which is set…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWDC 38
Decision Date: 20 February 2018

CaseChat Overview and Summary

The plaintiff, Stillwell Trucks Pty Ltd, brought proceedings against the defendant, Williams, a former employee, following the discovery of a fraudulent scheme involving false claims for items purchased by customers that were neither purchased nor delivered. The matter was heard and determined in the Local Court of New South Wales. The plaintiff sought damages for breach of contract and an order for the defendant to pay costs on a gross sum basis.

The court was required to determine whether the defendant had breached his contractual obligations to the plaintiff and, if so, the appropriate quantum of damages. Additionally, the court had to decide whether the plaintiff was entitled to costs on a gross sum basis, and if so, whether a reduction should be made given the relatively small sum sought.

In its judgment, the court found that the defendant had indeed breached his contractual obligations by engaging in fraudulent activities that resulted in financial loss to the plaintiff. The court awarded damages in the sum of $162,879.71, inclusive of interest. Given the defendant's failure to appear in court and the relatively small amount of costs sought, the court determined that a gross sum costs order was appropriate, albeit with a reduction to reflect the smallness of the sum sought. The court ordered the defendant to pay $9,487.69 in costs.

The court also ordered that a copy of the judgment be provided to the Commissioner of Police, the exhibits be retained for 28 days, and the plaintiff be required to notify the defendant of the orders. This decision underscores the importance of contractual integrity and the court's willingness to award costs in appropriate cases, even when the sums involved are relatively modest.

Orders

Orders of the court

(1) Defendant called outside Court 13D three times at 10:10am – No appearance.

(2) Judgment for the plaintiff for the sum of $162,879.71 inclusive of interest.

(3) Pursuant to s 98 Civil Procedure Act 2005 (NSW), the defendant is to pay the plaintiff’s costs of $9,487.69 on a gross sum basis.

(4) Direct the Registrar to provide a copy of this judgment to the Commissioner of Police.

(5) Exhibits retained for 28 days.

(6) Plaintiff is to notify the defendant of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Stillwell Trucks Pty Ltd v Williams [2018] NSWDC 38
Hearing dates:	20 February 2018
Date of orders:	20 February 2018
Decision date:	20 February 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendant called outside Court 13D three times at 10:10am – No appearance. (2) Judgment for the plaintiff for the sum of $162,879.71 inclusive of interest. (3) Pursuant to s 98 Civil Procedure Act 2005 (NSW), the defendant is to pay the plaintiff’s costs of $9,487.69 on a gross sum basis. (4) Direct the Registrar to provide a copy of this judgment to the Commissioner of Police. (5) Exhibits retained for 28 days. (6) Plaintiff is to notify the defendant of these orders.
Catchwords:	CONTRACT – breach of contract – plaintiff brings proceedings against former employee following the discovery of a system of fraudulent claims for items purchased by customers which were neither purchased nor delivered to them – COSTS – application for gross sum costs order – whether a “rule of thumb” deduction should be made having regard to the smallness of the sum sought – gross sum costs order made accordingly
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 98 and 100 Uniform Civil Procedure Rules 2005 (NSW), r 30.1
Cases Cited:	Aesthete No 3 Pty Limited ACN 127 464 966 v Gilmore Finance Pty Limited ACN 104 792 627 [2018] NSWDC 1 Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 Harrison v Schipp (2002) 54 NSWLR 738 Palladium Consulting Pty Ltd [2013] NSWSC 92 Prime Marble and Granite Pty Ltd ACN 077 393 938 v Mehajer [2017] NSWDC 273 Rafidi v Commonwealth Bank of Australia [2017] NSWCA 96 Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 Star Diamond v Diamond (No 4) [2013] NSWCA 811 Wilkie v Brown [2016] NSWCA 128
Category:	Principal judgment
Parties:	Plaintiff: Stillwell Trucks Pty Ltd Defendant: Angus Williams
Representation:	Counsel: Plaintiff: Mr N J Maley (solicitor) Defendant: No appearance Solicitors: Plaintiff: Gilchrist Connell Defendant: No appearance
File Number(s):	2017/164806
Publication restriction:	None