Medfin Australia Pty Limited v Ian Lester Rafter & Ors [2007] NSWDC 72

New South Wales District Court

CITATION: Medfin Australia Pty Limited v Ian Lester Rafter & Ors [2007] NSWDC 72

HEARING DATE(S): 23/04/2007

JUDGMENT DATE: 2 May 2007

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: 1. Judgment for the plaintiff in the sum of $362,459.05; 2. The parties have leave to bring in short minutes of order reflecting the interest on the judgment sum or alternatively, liberty to apply in relation to any arguments concerning interest; 3. Defendants pay plaintiff's costs on an indemnity basis; 4. Exhibits retained for 28 days.

CATCHWORDS: Contracts – guarantees – lease agreement mislaid by plaintiff – whether evidence established first and third plaintiffs signed guarantees to second defendant's lease agreement - Contracts – penalty clauses – whether clauses containing pre-estimates of damage were a reasonable pre-estimate of the loss or should be set aside as penalty clauses - Contracts – clauses for indemnity costs in the event of default – whether the court's exercise of discretion as to costs should correspond with contractual entitlements to costs on an indemnity basis

Abigroup Limited v Sandtara Pty Limited [2002] NSWCA 45 Allen v Tobias (1957 – 8) 197 CLR 367 AMEV Finance Limited v Artes Studios Thoroughbreds Pty Limited [1989] 15 NSWLR 564 AMEV-UDC v Austin (1986) 162 CLR 170 Campbell Discount Co v Bridge [1962] AC 600 Commercial Bank of Australia v Amadio (1983) 151 CLR 447 CASES CITED: Citicorp Australia Limited v Hendry (1985) 2 NSWLR 1 Clark v State of New South Wales [2006] NSWSC 673 Esanda Finance Corporation v Plessnig (1989) 166 CLR 133 Gomba Holdings (UK) Limited v Minories Finance Limited [1993] Ch 171 (CA) Ringrow Pty Limited v BP Australia Pty Limited (2005) 224 CLR 656 Robophone Facilities Limited v Blank [1966] 1 WLR 1428 Yarra Capital Group Pty Limited v Skylash Pty Limited [2006] VCSA 109