NARHEX AUSTRALIA PTY LTD v TELEMARKETING AUSTRALIA PTY LTD [1995] NSWCA 307

NARHEX AUSTRALIA PTY LTD v TELEMARKETING AUSTRALIA PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy ACJ, HANDLEY and SHELLER JJA 12 July 1995, 24 August 1995 [1995] NSWCA 307

CONTRACT — penalty — credit charges 0.6% per day — whether penalty law applies — if so whether penalty — held: Not a penalty — no relief. AMEV Finance Ltd v Artes Studios thoroughbreds Pty Ltd (1989) 15 NSWLR 564 (CA) appld.

PRACTICE and PROCEDURE — cross examination — control of by trial judge limits to — changing approach to — held: No error.

INTEREST — contract — whether penalty. JUDGE'S REASONS — whether adequate.

ARBITRATION — civil arbitration — costs of whether evidence deliberately withheld.

CONTRACT — penalty — credit charges — provision for credit charge of 0.06% per day on debt unpaid after 21 days — whether such charge is a penalty and unrecoverable as such — whether the law of penalties applies to such a charge held: (1) In deciding whether a sum provided by a contract amounts to a penalty, the Court must determine whether that sum is provided for a breach of the agreement and if so whether it amounts to a genuine pre-estimate of the damages which flow as a result of the breach. Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co [1915] AC 79 (HL) applied, (2) The Court will approach such questions by looking to the substance not the form of the agreement. Acron Pacific Pty Ltd and Ors v Offshore Oil NL and Ors (1985) 157 CLR 514; (3) The sum in question was not, in the circumstances, a penalty because it did not amount to an extravagant burden or impose unconscionable or unreasonable burdens upon a party. IAC (Leasing) Ltd v Humphreys (1972) 126 CLR 131; O'Dea and Ors v ALL States Leasing System (WA) Pty Ltd and Ors (1983) 152 CLR 359; AMEV Finance

Ltd v Artes Studios Thoroughbreds Pty Ltd (1989) 15 NSWLR 564 (CA) applied.