New South Wales District Court CITATION: International Network Express Pty Limited v Colin Edward Smith t/as Midnight Runner Couriers [2009] NSWDC 197 HEARING DATE(S): 24 July 2009 JUDGMENT DATE: 24 July 2009 JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ 1. Verdict for the Plaintiff in the sum of $84,647.76; DECISION: 2. Defendant to pay the Plaintiff's costs on the ordinary basis; 3. The exhibits are to be retained in the court file; 4. Liberty to apply on 7 days notice if further orders are required. CATCHWORDS: CONTRACT – damages for breach of contract for courier services – ex-parte hearing. LEGISLATION CITED: Civil Procedure Act 2005 CASES CITED: - TEXTS CITED: - PARTIES: International Network Express Pty Limited ACN 080 364 797 (Plaintiff) Colin Edward Smith t/as Midnight Runner Couriers (Defendant) FILE NUMBER(S): 4599 of 2008 COUNSEL: Mr B Lum, solicitor (Plaintiff) There was no appearance for the defendant SOLICITORS: John de Mestre & Co (Plaintiff) JUDGMENT Nature of the case 1. By statement of claim filed on 1 October 2008 the plaintiff claims damages for non-payment of courier services provided by the plaintiff to the defendant between 1 February 2007 and 3 December 2007. On 10 June 2007 the defendant was notified of the date for hearing and has not appeared. The defendant's former solicitor filed a notice of ceasing to act on 3 April 2009. The hearing proceeded ex-parte. Evidence 2. The plaintiff tendered a notice to admit facts and authenticity of documents dated 11 June 2009, an affidavit of service sworn on 24 July 2009 showing that notice to admit was served on the defendant on 11 June 2009 by ordinary post, a 55 page bundle of invoices which were referred to in the notice to admit and a schedule of applicable interest calculations on the amounts claimed in those respective invoices. Those documents were admitted into evidence as Exhibits "A", "B", "C", and "D". Consideration 3. On considering the material tendered I am satisfied that the plaintiff provided courier services to the defendant as claimed in the period between 1 February 2007 and 3 December 2007. I am also satisfied that the services were provided to the defendant at his request pursuant to the agreement between the parties. I am also satisfied that the plaintiff has made requests of the defendant for payment of such services in the total amount of $71,278.33 and that the defendant has not complied with such requests for payment. Consequent upon such non-payment the plaintiff is entitled to a verdict in the amount claimed plus interest pursuant to s 100 of the Civil Procedure Act 2005 in the amount of $13,369.43 as calculated in Exhibit "D". Accordingly, the plaintiff is entitled to succeed for the amount claimed, together with interest and costs. Disposition and orders 4. I make the following orders: (a) I find a verdict for the plaintiff in the sum of $84,647.76 including interest up to the time of judgment; (b) I direct the entry of judgment in favour of the plaintiff in the sum of $84,647.76; (c) I order the defendant to pay the plaintiff's costs on the ordinary basis; (d) I order that the exhibits be retained in the court file; (e) Liberty to apply on 7 days notice if further orders are required. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.