Abichandani v Willatt [2018] NSWDC 150

Abichandani v Willatt [2018] NSWDC 150

Because the defendants had been notified of the hearing and failed to appear, and because the affidavit evidence showed service and a close connection between the first defendant and the second defendant, it was consistent with s 56 Civil Procedure Act 2005 (NSW) to enter default judgment against the first defendant and assess damages forthwith. The plaintiff's affidavit evidence and submissions established reasonable amounts for rectification costs, retained materials, supervision costs and loss of rental income, totalling $345,084.38, with interest of $5,043.90.

Jurisdiction
Australia
Judgment Date
22 May 2018
Procedural Posture
Civil Claim for Damages for Breach of Contract and Under the Australian Consumer Law / Notice of Motion for Default Judgment Against the First Defendant and Assessment of Damages, With Defendants Absent
Outcome
Judgment for the plaintiff against the defendants in the sum of $345,084.38 plus interest of $5,043.90, making a total of $350,128.28, with defendants to pay the plaintiff's costs on the ordinary basis.
Legal Topics
['breach of Contract' 'default Judgment' 'assessment of Damages' 'remedial Building Work' 'loss of Rental Income' 'absent Party Procedure']
['contract' 'civil Procedure' 'consumer Law' 'building and Construction'] ['breach of Contract' 'default Judgment' 'assessment of Damages' 'remedial Building Work' 'loss of Rental Income' 'absent Party Procedure']

Case Brief

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Procedural Posture

Civil Claim for Damages for Breach of Contract and Under the Australian Consumer Law / Notice of Motion for Default Judgment Against the First Defendant and Assessment of Damages, With Defendants Absent

Legal Issues

  1. 1 ['Whether the Court should proceed in the absence of the defendants under r 29.7 Uniform Civil Procedure Rules 2005 (NSW).' 'Whether leave should be granted to file a Notice of Motion for default judgment against the first defendant returnable instanter.' 'Whether judgment should be entered against the first defendant and damages assessed forthwith.' 'Whether the plaintiff proved the claimed damages for rectification costs, materials, supervision costs and loss of rental income.']

Ratio Decidendi

Because the defendants had been notified of the hearing and failed to appear, and because the affidavit evidence showed service and a close connection between the first defendant and the second defendant, it was consistent with s 56 Civil Procedure Act 2005 (NSW) to enter default judgment against the first defendant and assess damages forthwith. The plaintiff's affidavit evidence and submissions established reasonable amounts for rectification costs, retained materials, supervision costs and loss of rental income, totalling $345,084.38, with interest of $5,043.90.

Court Disposition

Judgment for the plaintiff against the defendants in the sum of $345,084.38 plus interest of $5,043.90, making a total of $350,128.28, with defendants to pay the plaintiff's costs on the ordinary basis.

Orders

  • ['Defendants called outside court 13D three times at 12.15pm and 12.20pm, no appearance.' "Grant leave to the plaintiff to file a Notice of Motion for default judgment against the first defendant in court returnable instanter upon the undertaking of the plaintiff's solicitor to pay the filing fee in 7 days." 'Direct...