Foilmakers Australia Pty Ltd v Everett Worthington (Aust) Pty Ltd [2008] NSWDC 85

New South Wales District Court

CITATION: Foilmakers Australia Pty Ltd v Everett Worthington (Aust) Pty Ltd [2008] NSWDC 85 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4, 5, 6 and 7 February 2008

JUDGMENT DATE: 18 April 2008

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

(1) Judgment for the plaintiff for $207,125.22. DECISION: (2) Defendant pay plaintiff's costs. (3) Liberty to restore concerning interests and costs. (4) Exhibits retained for 28 days.

CATCHWORDS: CONTRACT - supply of goods - conflicting evidence of plaintiff's and defendant's witnesses - reliance on objective evidence to determine disputed issues of fact

TEXTS CITED: Justice David Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales <http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_ipp020906>

PARTIES: Plaintiff: Foilmakers Australia Pty Ltd Defendant: Everett Worthington (Aust) Pty Ltd

FILE NUMBER(S): 6132 of 2006

COUNSEL: Plaintiff: S Sirtes Defendant: P Newton

SOLICITORS: Plaintiff: Andreones Pty Limited Defendant: Kemp Strang Lawyers

Introduction

1. The plaintiff by way of Statement of Liquidated Claim seeks $188,444.38, being $170,058.24 plus interest for the period 14 November 2005 until 15 December 2006 and interest thereafter at the rate of $41.93 per day, for payment for goods the plaintiff alleges it ordered on behalf of the defendant. The disputed issue of fact fall within a narrow compass and both parties contend that no legal issues arise. The question is whether I accept the evidence of the plaintiff's witnesses or the defendant's witnesses as to the contents of the contract.