Diamond Wheels Pty Ltd v Origin Concepts Pty Ltd trading as OC Automotive [2023] NSWDC 418

District Court New South Wales

Medium Neutral Citation: Diamond Wheels Pty Ltd v Origin Concepts Pty Ltd trading as OC Automotive [2023] NSWDC 418 Hearing dates: 22-23 August 2023 Date of orders: 31 August 2023 Decision date: 31 August 2023 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the plaintiff for $141,000. (2) Defendant pay plaintiff's costs. (3) Liberty to apply in relation to interest and costs. (4) Exhibits retained until further order. Catchwords: Debt – Burden of proof – Car dealer buys cars on consignment from another car dealer to sell to his own customers – Plaintiff complains the defendant failed to remit the agreed price after sales to third parties for a number of these vehicles – Onus of proof - Defendant must allege and prove payment by way of discharge as a defence to an action for indebtedness in respect of executed consideration – No documentary proof that payment was made - Failure of creditor to produce a book containing handwritten details later copied onto the plaintiff's computer did not displace the onus – Defendants fail to satisfy onus – Quantum Legislation Cited: Civil Procedure Act 2005 (NSW), s 67 Cases Cited: Barber v Carrier Air Conditioning Pty Ltd [2004] VSC 475 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Kirby v Sanderson Motors Pty Ltd (2001) 59 NSWLR 119; [2002] NSWCA 44 Palavi v Queensland Newspapers Pty Ltd [2012] NSWCA 182 Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332 Technology Leasing Limited v Le Guarde Food Services Pty Limited & Joseph Miro Vucetic [2012] NSWSC 185 Young v Queensland Trustees Limited (1956) 99 CLR 560 Texts Cited: Nil Category: Principal judgment Parties: Diamond Wheels Pty Ltd (Plaintiff) Origin Concepts Pty Ltd trading as OC Automotive (Defendant) Representation: Counsel: Mr A Hopkins (Plaintiff) Ms N Maddocks (Defendant)