Toyota Finance Australia Ltd v State Corporation Pty Ltd [2020] NSWSC 1717

Supreme Court New South Wales

Medium Neutral Citation: Toyota Finance Australia Ltd v State Corporation Pty Ltd [2020] NSWSC 1717 Hearing dates: 27 November 2020 Decision date: 27 November 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order that damages be assessed in the amount of $5,239,431.60 and that judgment be entered for that sum in favour of the plaintiff against the second defendant. 2. Order the second defendant to pay the plaintiff's costs of the application for assessment of damages. Catchwords: CIVIL PROCEDURE — Assessment of damages Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 30.1 Cases Cited: Bank of Western Australia Ltd v Abdul [2012] VSC 222 Dobbs v The National Bank of Australasia Limited (1935) 53 CLR 643; [1935] HCA 49 Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162 Toyota Finance Australia Ltd v State Corporation Pty Ltd [2020] NSWSC 1398 Category: Consequential orders (other than Costs) Parties: Toyota Finance Australia Ltd (Plaintiff) State Corporation Pty Ltd (First Defendant) Pamela Judith Murphy (Second Defendant) Representation: Counsel: D Farrar (Solicitor) (Plaintiff) Solicitors: Farrar Lawyers File Number(s): 2020/00027959 Publication restriction: Nil

Judgment 1. HER HONOUR: On 9 October 2020 on an application brought by the plaintiff, Toyota Finance Australia Limited (Toyota Finance), by notice of motion filed on 29 July 2020, I made orders that the defence filed on 21 April 2020 by the second defendant to these proceedings (Ms Pamela Murphy) be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). I entered judgment for the plaintiff against the second defendant with damages to be assessed pursuant to r 30.1 of the UCPR (see my reasons in Toyota Finance Australia Ltd v State Corporation Pty Ltd [2020] NSWSC 1398). The present application is now the application by the plaintiff for the assessment of damages payable pursuant to the judgment entered on 9 October 2020. 2. I should note that the first defendant, State Corporation Pty Ltd, is now in liquidation and leave was not sought to proceed against it. I should also note that there has been no appearance on this assessment of damages hearing for or on behalf of the second defendant; nor did the second defendant appear at the liability hearing. On the previous occasion, the second defendant had communicated with my Associate and with the plaintiff's solicitors to the effect she was no longer able to defend the proceedings. I have no reason to believe that the position is any different on this occasion. The proceedings were set down on 24 November 2020 for hearing for assessment of damages this afternoon. The plaintiff, through its lawyers, notified Ms Murphy by email and letter on 24 November 2020 of the listing of the application for the assessment of damages, and receipt of that email and letter was acknowledged by Ms Murphy. I am satisfied that it is appropriate to proceed in the absence of the second defendant. 3. In support of its application for damages, Toyota Finance relies upon the following affidavits: an affidavit sworn on 29 May 2020 by Geoff Noble, the Hardship Manager employed by Toyota Finance, who is authorised to swear the affidavit on its behalf (which affidavit was read on the last occasion), together with the exhibits to that affidavit; a further affidavit of Geoffrey Noble sworn on 18 November 2020; an affidavit sworn on 18 November 2020 by Mr Sherwyn Lee, solicitor; and an affidavit sworn on 26 November 2020 by the plaintiff's solicitor Mr David Matthew Farrer.